Raghuni And 2 Ors. vs State Of U.P.
2019 Latest Caselaw 4689 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

	A.F.R.
 
Judgement Reserved on 9.04.2019
 
Judgement Delivered on 17.05.2019
 
Court No. - 1
 
Case :- CRIMINAL APPEAL No. - 158 of 2018
 

 
Appellants :- Raghuni And 2 Ors.
 
Respondent :- State Of U.P.
 
Counsel for appellants :- Ajay Kumar,Ramesh Chandra Yadav
 
Counsel for Respondent :- G.A.,Abhay Raj Singh
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)

1. Heard Sri Dilip Kumar, learned counsel for the appellants and Sri Jai Narain, learned A.G.A. for the State.

2. This Criminal Appeal has been preferred by Raghuni, Bharat Singh and Nirbal Singh @ Nawal Singh against the judgement and order dated 23.12.2017 passed by Additional District and Sessions Judge, Court No. 6, Firozabad in S.T. No. 73 of 1992, State Vs. Raghuni and others whereby the appellants have been convicted under Section 302 I.P.C. read with Section 149 I.P.C., Section 307 I.P.C. read with Section 149 I.P.C. and Section 147 I.P.C. and sentenced under Section 302 I.P.C. read with Section 149 I.P.C. with life imprisonment, fine of Rs. 25,000/- and in default of payment of fine, two years Additional R.I. each; under Section 307 read with Section 149 I.P.C., R.I. of 10 years, fine of Rs. 10,000/- and in default of payment of fine, one year additional R.I. each; under Section 147 I.P.C., six months R.I., fine of Rs. 1,000/- and in default of payment of fine, 15 days additional R.I. each and it is further directed that all the sentences shall run concurrently.

3. Two co-accused i.e. Raghuveer S/o Ram Swaroop and Pahuchi Lal S/o Ram Tek had died during the course of trial and hence proceedings were abated against them. During pendency of appeal, accused Raghuni S/o Sri Ram Chandra also died as a result of which, his appeal has been abated vide Court's order dated 8.04.2019, therefore, we have appeal of accused, Bharat Singh and Nirbal Singh @ Nawal Singh before us for consideration.

4. The prosecution case in brief as it unfolds from F.I.R. is that the father of informant, Ajay Kumar Singh i.e. Om Dutt Mishra (P.W.1) was going Jasrana from his house on motor-cycle and as soon as he reached on the road by the side of village, Macharia, Bus no. UTE 9105 was found parked obliquely blocking the entire road and as soon as P.W.1 stopped his motor-cycle, Bharat Singh, Raghuveer, Pahuchi Lal, Nirbal Singh, Raghuni all Yadav by caste resident of village, Macharia, P.S. Fariha, District, Mainpuri got down from the said bus along with their companions and started beating informant's father with iron rod and had thrown him down on the road. At that very time, Jitendra Shanker (P.W.3) resident of Sonav, P.S. Fariha came there on a bicycle and after leaving the cycle there, he started mediating, at this, he was also thrown beneath the bus. At that time, Ashok Tiwari, P.W.4 and Munna Lal resident of Fariha and other passers-by also reached there. In the mean-time, the accused had crushed both of them by the said bus and also the bicycle of Jitendra Shanker which was kept at a little distance from the bus, was also crushed as a result of which, informant's father died on the spot and Jitenda Shanker also received grievous injuries and they were dispatched to Firozabad hospital. It was prayed that after recording the F.I.R., appropriate action be taken against the guilty.

5. On the written report, Exhibit Ka-1 being given at P.S. Fariha, Sub-District, Jasrana, District, Mainpuri on 12.09.1987 at 9:30 a.m., Case Crime No. 53 of 1987 under Section 147, 148, 149, 307 and 302 I.P.C. was registered against Bharat Singh, Raghuveer Singh, Pahuchi Lal, Nirbal Singh and Raghuni by Head-Moharrir, Onkar Singh who prepared chik F.I.R. which is Exhibit Ka-16 and had made entry of this case in G.D. which is Exhibit Ka-17.

6. The investigation of this case was handed over to S.I., Ram Kripal Arya (P.W.9) who on 12.09.1987 recorded statement of scribe of F.I.R., Head Constable, Onkar Singh and along with S.I. Mahavir Singh Baliyan, Constable Rajveer Singh and Constable Shiv Ram Singh, reached the place of incident where he found huge crowd which was pacified and the inquest report of deceased, Om Dutt Mishra was prepared and his dead body was sealed and sample seal was prepared. He also prepared Chitthi R.I., Chitthi C.M.O., Photo-Lash and Challan-Lash and after preparing the panchayatama, the dead-body was handed over to Constable Rajveer Singh and Shiv Ram Singh for post-mortem. Thereafter, the second I.O. took over the investigation of this case i.e. S.I. Gulab Rai Tyagi. P.W.10 who has proved the panchayatnama, Exhibit Ka-12, Chitthi C.M.O., Exhibit Ka-13, Photo-Lash, Exhibit Ka-14 and Chllan-Lash, Exhibit Ka-15.

7. S.I. Ram Kripal Arya, P.W.9 has stated in cross-examination that in tehrir, the time of occurrence was written after the proceedings had been initiated and he had not inquired in this regard from the head-moharrir. In Panchayatnama, no crime number, sections and against whom, the case was registered, has been mentioned at the top. In the panchayatnama on the first page, the place where the date of lodging the report and time of occurrence is written, pen has been used twice, therefore, it appears that over-writing has been made. Nowhere has it been mentioned as to against which accused, the case was registered. Panchayatnama was being filled of deceased Om Dutt Mishra, therefore, there was no necessity of mentioning the names of the accused. The deceased was concerned with the present case, therefore, the sections of offences have been mentioned on the main page of the inquest report. He has stated it to be wrong that after mentioning inquest report of deceased, Om Dutt Mishra R/o Fariha, on the top, Crime No. and sections were written subsequently. The constables who had taken away the dead body were handed over all the relevant papers along with inquest report.

8. In this regard, learned counsel for the appellants has argued that the documents which were provided to the Constable at this juncture, the list of the same was missing.

9. He (P.W.9) has further stated that when the original G.D. is written, report no. is mentioned in the margin on the left side and it is right to say that original G.D. and one copy of it, are sent to the office of C.O. and only carbon copy of it remains with the record. On the file, the Exhibit Ka-17 is not the original copy of the G.D. nor the same is a carbon-copy. The original G.D. and carbon-copy of the same were not present at the time of his deposition.

10. Citing above part of the evidence, it was argued by the learned counsel for the appellants that the genesis of the case is doubtful as the original G.D. and its carbon-copy were not presented at the time of recording statement of this witness.

11. This witness (P.W.9) has further stated that he had started for the place of occurrence at about 10:30 a.m. and recorded the statement of head-moharrir who had written chik F.I.R. and G.D. within half an hour at the P.S. itself and thereafter he had proceeded for the place of incident which was about four kms. away. He had reached there by cycle in about half an hour, i.e. he reached there by 11:00 a.m. After having reached there he made an effort to conclude the proceedings of inquest but the crowd assembled there, would not allow him to begin the proceedings, because the crowd wanted that inquest be conducted only when some higher authority reaches there. The house of the deceased would have been about four km. away from the place of incident, although members of the house of the deceased were present there. Statement of this witness was recorded by I.O., Tyagi but when the same was recorded, he does not recollect. The son of the deceased and others had told him that he should wait till higher authorities arrived there and then only panchatnama, Exhibit Ka 12 be prepared but he has not made any mention that after counselling them, he had prepared panchayatnama. He did not obtain signatures of panchas on the note nor did he tell the I.O. that he did not consider it necessary to take signatures of panchas after the note was written in the panchayatnama. He has stated it to be wrong that he recorded statement of head-moharrir and received Jild panchayatnama subsequently. In Exhibit Ka-15, challan-lash, the date and time of sending the dead body is mentioned in words but not in numbers as the same was forgotten from being mentioned. In the said challan-lash, the date of lodging the report at P.S. is written but the time is not written. The probable time of death is also not mentioned in the relevant column which was forgotten due to inadvertent mistake. He did not receive any information from the head-quarters about the said column having been left blank. In his knowledge, the Constable had taken the dead body for conducting the post-mortem. He has denied it that the columns which were left unfilled were left because he did not have knowledge about the timings etc.

12. Lot of stress was put on by the learned counsel for the appellants in respect of these columns having been left blank and stated that these were left deliberately blank with a view to manipulating the time and that entire case was cooked up against the appellants by ante-timing the F.I.R. and preparing false papers.

13. S.I., Gulab Rai Tyagi, P.W.10 went to the place of incident and collected blood-stained and ordinary soil, prepared fard recovery of motor-cycle and took down the statements of witnesses of said fard. He made search of accused on 13.09.1987 and 14.9.1987 and after receiving copy of panchayatnama of the deceased, Om Dutt Mishra copied the same in C.D. on 15.09.1987. On 16.09.1987, he received parcha of appearance of accused, Raghuni @ Raghunath which was annexed in C.D. On 17.09.1987, he recorded statement of photographer, Raheesh Pal Singh whereafter he was transferred and further investigation was handed over to other I.O. He has proved memo of collecting ordinary soil and blood-stained soil which is Exhibit-18, memo of taking in possession one pair of shoes of the deceased, one damaged cycle which is Exhibit Ka-18. At that very time, he also prepared fard of Rajdoot Motor-cycle no. UTM4352 in respect of taking the same into possession as well as for giving the same in supurdagi which is Exhibit Ka-4, in his hand-writing. On 12.09.1987, this witness made inspection of the place of incident at the instance of witnesses and not at the instance of informant which is Exhibit Ka-20.

14. It was argued on behalf of learned counsel for the appellants that this witness did not prepare the site-plan at the instance of informant because informant was not an eye-witness.

15. This witness has also proved two shoes of black colour which were taken out of sealed bundle which was stated to be that of the deceased and were marked as material Exhibits 2 and 3 respectively. From the other sealed bundle, two containers were taken out which contained blood stained and ordinary soil which were collected from the spot and proved them as material Exhibits 3 and 4 respectively.

16. P.W.10, Gulab Rai Tyagi, the second I.O. in cross-examination has stated that at the time of incident, he was in kasba, Shikohabad in important meeting; on 12.09.1987, he received information on R.T. Set but its time, he does not know. He had received investigation of this case on 12.09.1987 at 16:20 hours from his earlier I.O. i.e. Sri R.K. Arya. After having seen chik F.I.R. which bears date 13.09.1987, on the same day, the copy of chick F.I.R. must have been sent. He did not record statement of earlier I.O., Sri R.K. Arya although he had prepared panchayatnama. After having seen panchayatnama, Exhibit Ka-12, he stated that the proceedings of panchayatnama began on 12.09.1987 at 11:00 a.m. and were closed by 4:00 p.m. and this long time i.e. five hours were consumed in preparing the inquest because Om Dutt Mishra was a political person who was residing in Fariha, therefore, lot of people had assembled there and the road was jammed. Although he has stated that he has not mentioned the reason of the said delay in conducting the panchayatnama, the same was being told by him only on the basis of memory. However he has stated that during investigation, he did not record statement of injurd witness, Jitendra Shanker because investigation remained with him only for five days. In parcha dated 17.09.1987, there is mention made of Jitendra Shanker being hospitalized in District Firozabad hospital and the informant of the case had told him that the injured was not in a condition to speak which was told on 17.09.1987 by the informant. It is right to say that he considered it more important to arrest the accused instead of recording statement of injured Jitndra Shanker first. He also stated that he did not verify this fact that Jitendra Shanker was not in a condition to speak from any doctor. Till the time he was conducting the investigation, no medical report of Jitendra Shanker was communicated to him nor did he see him in injured condition but on the basis of statement of the complainant/informant and the witness, he had admitted this fact that the said witness was in injured condition. Further this witness has stated that since shoes of deceased were lying near him, it was taken as belonging to him although no site-plan about recovery of the said shoes was made; whether injured Jitendra Shanker was kept lying on the place where marpeet was done or he was removed from there, he does not know about this, although the same would be in the knowledge of earlier I.O.

17. The cycle belonging to Jitendra Shanker and motor-cycle of deceased were not presented before him today when he was deposing in court. He had not mentioned the description of the shoes of deceased and when he reached the place of incident, by that time his dead body was taken away. He does not know whether the keys of the motor-cycle were lying near the deceased. After having seen the recovery memo of motor-cycle, this witness has stated that it contains the fact that the keys were found near the dead body. The site-plan was prepared at the instance of the informant. He had stated that the said keys were of the motor-cycle which was lying near the dead body and on that basis only, Exhibit Ka-4 was prepared which contains description of the keys lying near the dead body. The keys which were found there were given in supurdagi of Ajay Kumar Mishra but the same were not presented in Court. Bus No. UTE 9105 was taken by him in his possession; there was no mention made in the site-plan of other culvert other than the one where the incident is shown to have taken place.

18. P.W.7, the third I.O. of this case i.e. Tejpal Singh Verma stated in examination-in-chief that he recorded statement of first I.O., S.I. Ram Kripal Arya on 19.09.1987 and that of Constable Rajveer Singh and thereafter made search for the accused who could not be found. On 20.09.1987, he obtained injury memo of injuried Jitendra Shanker, P.W.3 and thereafter, on 21.09.1987, he again made search for the accused and on 23.09.1987, he recorded statement of informant again at the P.S. He also annexed four applications made available by the informant in C.D. He recorded statement of Vinod Kumar and Satendra Kumar who were witnesses of inquest report and also recorded statement of S.O., Nathu Ram Bharadwaj. He also got conducted technical inspection of Bus no. UTE 9105 by which the incident was stated to have been caused, which was parked in the premises of the P.S. and after getting technical inspection report copied in C.D., he recorded statement of injured Jitendra Shanker after coming to the Swastik Nursing Home in Firozabad. On 24.09.1987, he made search for the accused when he could not be found, he obtained warrants under Section 82 and 83 Cr.P.C. On 26.09.1987, he made raid for their arrest, thereafter, when he returned to P.S., he recorded statement of witnesses, Ghanshyam Sundar Gupta and Nathu Ram, of inquest report. He also received photograph of the place of incident (in eight copies) from the office of P.S., and also obtained supplementary medical report and medical certificates of injured, Jitendra Shanker and copied them in C.D. on 29.09.1987 and also recorded statement of Constable Shiv Ram Singh at the P.S. After additional force was made available, he went to village, Macharia and attached the residential property as well as immovable property of the absconding accused. On 6.10.1987, he interrogated wife of deceased i.e. Smt. Omvati at her house and thereafter after reaching the office of Private Bus Union in district Firozabad, he obtained information from Mahavir Singh in respect of management of buses and asked written questions in respect of Bus No. UTE 9105 which were responded in writing which was paper no. 23-A and has been exhibited as Exhibit Ka-7, thereafter he recorded the statement of Girish Shanker Sharma at his house. On 13.10.1987, he obtained written replies after giving a questionnaire to Dr. Rajendra Kumar Gupta who had conducted post-mortem of the deceased in S.N. Hospital which is paper no. 24 a/1 and has proved the same as Exhibit 8. The written replies given by the said doctor is paper no. 24 a/2 which is Exhibit Ka-9. On 15.10.1987, he arranged to dispatch the blood-stained soil and ordinary soil for Agra for chemical examination and submitted charge-sheet against accused persons which is Exhibit Ka-10.

19. Last I.O., who concluded the investigation of this case is P.W.7, Sri Tejpal Singh Verma has stated in cross-examination that he had received photographs but does not recollect whether he had received negative also; it is wrong to say that the photographs which are presented in Court do not appear any seal or signature nor any date. When he had received these photographs, by that time the motor-cycle had been removed from the place of incident and, therefore, it was not possible for him to compare the said photograph of the place of incident. Further this witness has stated that the points which are sought to be clarified regarding the medical report, he had taken answers from the doctor in writing in the form of question/answer but he did not consider it necessary to separately record the statement of doctor. The said question/answer was annexed by him in the case-diary. If witness could himself put his signatures on his statement, there is nothing objectionable. He has not made entry in the C.D. of the fact that the signatures were made by the doctor on the question/answer, Exhibit Ka-9 voluntarily. The said question/answer mentioned in the C.D. are in his hand writing and bears signature of Mahaveer Singh also. In Exhibit Ka-7, no dates are mentioned but its reference is made on 6.10.1987 by him in C.D. and by inadvertent mistake, the date was forgotten from being mentioned in Exhibit Ka-7. Similarly dates were also forgotten to be mentioed in Exhibit Ka-9; Mahavir Singh S/o Natthu Ram's name were mentioned in the list of witnesses. The injured witness Jitendra Shanker was also given treatment by Dr. Rakesh Agrawal and prior to that he was treated in Government Hospital. His medical report is annexed with C.D. He had not seen B.H.T. of the said injured. The occurrence is of 12.09.1987 while in hospital, he had gone on 13.09.1987 and because he was not satisfied with the treatment, he had gone to the private doctor for treatment. He had not seen as to what medicines were prescribed by Dr. Rakesh Agrawal to the injured Jitnedra Shanker. This witness himself has stated that he had seen the earlier certificate given by Dr. Rakesh Agrawal and had made mention of the same in C.D. He had not seen patient register of Dr. Rakesh Agrawal where Jitendra Shanker was admitted. He had denied that he did not conduct the investigation fairly and submitted false charge-sheet.

20. Upon considering the entire evidence, the trial court framed charges against all the accused including the present appellants on 01.08.1988 under Sections 147, 302 I.P.C. read with Section 149, 307 I.P.C. read with Section 149 I.P.C. to which they pleaded not guilty and claimed to be tried.

21. To prove its case, prosecution has examined Ajay Kumar Mishra, informant who is son of the deceased as P.W.1, Dr. R.L. Saraswat who conducted the medical examination of injured, Jitendra Shanker (P.W.3) as P.W.2, injured witness, Jitendra Shanker Mishra examined as P.W.3, Ashok Kumar S/o Brahma Nand who is also an eye-witness as P.W.4, Dr. Ganesh Chandra Sharma who conducted the X-ray of injured, Jitnedra Shanker Mishra as P.W.5, Dr. Rakesh Kumar Agarwal as P.W.6 who had treated the injured, Jitendra Shanker, S.I., Tez Pal Singh Verma, I.O. No.3 as P.W.7, Dr. Rajendra Kumar Gupta who conducted the post-mortem of the deceased, Om Dutt Mishra as P.W.8, Ram Kripal Arya, I.O. first who investigated the case partly as P.W.9, S.I., Sri Gulab Rai who is second I.O. as P.W.10, Constable Shanti Swaroop who proved report of death of accused, Raghuvir Singh as C.W.-11.

22. Thereafter, the prosecution evidence was closed and the statement of accused were recorded under Section 313 Cr.P.C. Out of all the accused, we are dealing with the statement of accused under Section 313 Cr.P.C. only of the two appellants who are alive i.e. Bharat Singh and Nirbal Singh @ Naval Singh, in which they have stated entire evidence of the prosecution to be false and have taken the plea of false implication. 

23. Learned trial court after having gone above evidence on record has held the accused appellants guilty and sentenced them with above-mentioned punishment. 

24. Learned counsel for the appellants has taken us through the entire evidence word by word and has argued that post-mortem report of the deceased would reveal that injury no.s 6, 12 and 18 were contusions while injury nos. 19 and 23 were lacerated wounds, injury no. 25 is fracture of radius and injury no. 25 which was wrongly mentioned as injury no.25 although it should have been injury no. 26, is recorded as fracture of iliac. Injury no. 27 is fracture of nasal bone. Injury no. 26 is dislocation of elbow and all other injuries are found to be abrasions. As regards injury of Jitendra Shanker, it is argued that he was examined at 12:30 p.m. and in his supplementary report, injury no. 2 was found to be grievous. In X-ray, fracture of left femur was found. After having indicated these injuries, it was argued by him that informant Ajay Kumar Mishra, as per F.I.R., has not made clear as to whether he was an eye-witness of the occurrence or whether he had mentioned the details in the F.I.R. as was narrated to him by some other person and after having taken us through this evidence, he tried to prove that he was not an eye-witness as per admission of this witness, therefore, his testimony, according to him, is not believable in respect of his having seen the deceased or the injured having been assaulted by the accused persons with their other three companions. With respect to other injured i.e. Jitendra Shanker Mishra (P.W.3), he argued that he is Samadhi of the deceased. It is further pointed out that this witness has stated that P.W.1 was told about the occurrence by Nathu Ram which fact was neither mentioned in the F.I.R. nor in his statement under Section 161 Cr.P.C. and the same was being stated for the first time before the trial court and besides that, Nathu Ram was not examined by the prosecution side. He also pointed out that P.W.1 has stated that Nathu Ram had called him at the place of incident, while about the incident, he was told by Ashok Kumar.

25. Learned counsel for the appellants has further argued that according to the prosecution case both Om Dutt Mishra and Jitendra Shanker and his bicycle were crushed by the bus belonging to the accused which apparently does not get corroboration from the injury memos of the injured as well as injuries noted in the post-mortem report. He also argued that such kind of injuries appear to have been received by the deceased and the injured by meeting an accident by bus and that there could be no deliberate intention to crush them under the said vehicle with a view to murdering him. It is further argued that P.W.3 who is stating himself to be an eye-witness as well as injured witness who belonged to different village and did not belong to the village to which deceased belonged and, therefore, the presence of P.W.3 appears to be doubtful on the place of incident, hence he happens to be a chance witness. It is far fetched that both these persons i.e. deceased and P.W.3 would start from their respective places and would meet at the place of incident where the occurrence happened. It was further pointed out by the learned counsel for the appellants that in statement recorded of P.W.1 on 10.09.2009, an improvement was made in respect of the accused being armed with weapons because two accused i.e. Pahuchi Lal and Raghuveer were empty handed while Bharat Singh was having an iron-rod, Naval Singh was having tyre-liver and Raghuni was also having tyre-liver. This improvement was made to meet out the situation.

26. The statements of P.W.1 and P.W.3 were read out in Court by the learned counsel for the appellants at length and during the same, many interpretations were made by him to show that there were lacuna in their statements which would be pointed out by us while dealing with those statement at relevant place. With regard to statement of P.W.4, Ashok Kumar, it was argued that he happens to be a chance witness because he was going to purchase mustard and when he reached near the place of incident, he found the said bus blocking the passage and then he witnessed the occurrence. It was argued that his statement would reveal that his presence on the place of incident was suspect.

27. Learned counsel for the appellants also vehemently argued that on challani documents such as photo-lash, challan-lash and other relevant documents such as inquest report etc., there were cuttings found and moreover, timings of preparing those documents were not entered, which shows that the F.I.R. was ante-timed, which would demolish the entire prosecution case. It was also argued that the keys of the motorcycle of the deceased was stated to be lying near the dead body but the same was not found lying by the panchas at the time of making inquest. In the statement of other witnesses which were also read by the learned counsel for the appellants, various infirmities were shown, which according to him, bely to the truthfulness of the prosecution case; the same would be dealt with by us while taking these statement into consideration. Lastly it was argued that on the basis of infirmities indicated by him, accused appellants deserve to be acquitted and the judgement of the trial court deserves to be set-aside.

28. On the other hand, learned A.G.A. vehemently defended the impugned judgement stating that the occurrence took place on 12.09.1987 at 8:15 a.m., while its report had been lodged promptly at 9:30 a.m., the same day, the trial was dragged on by the appellants for 15 long years and during the course of trial, Munna Lal has expired, therefore, there was no question of him being examined in the present case. He further argued that in this case, Jitendra Shanker Mishra (P.W.3) is an eye-witness being an injured, therefore, his testimony cannot be disbelieved who has fully proved the prosecution case as narrated in the F.I.R. He further admitted that some times the facts are narrated in the F.I.R. in exaggerated form but that would not demolish the entire prosecution case. The injured, P.W.3 has not sustained superficial injuries rather his injuries were found to be grievous which would prove that he was definitely present at the place of occurrence. It has also come on record that there was enmity between two sides relating to dispute of patta. The deceased had opposed the illegal possession of the accused side on Ramlila ground and had made effort for cancellation of patta which was in existence in favour of the accused which led to animosity between two sides and, therefore, due to this enmity, this occurrence has been given effect to. It was also argued that the P.W.3 was a local resident being a teacher his official hours were from 7:00 a.m. till 11:00 a.m. and it was very natural that he would be going by his bicycle and when he came across the deceased, his Samadhi, who was being assaulted, he came to his rescue and even he received injuries in this occurrence, therefore his presence is very natural on the spot. It is also argued that the bus belongs to the accused, Bharat Singh and that all the accused are related to each other. He attributed the variation/contradictions in the statement of witnesses of fact as well as formal witnesses to the circumstances that the trial had to be conducted for a very long time, as it took about 15 years to conclude it, therefore the contradictions needed to be ignored. In respect to Ashok Kumar, P.W.4, it was also argued that he was also a natural witness of the occurrence because he was going to purchase mustard as he was running an expeller, therefore the statement of the said witness, has corroborated the occurrence in the manner as is stated in the F.I.R. and the same should be believed. He admitted candidly that there were certain lapses on the part of the I.O. in conducting the investigation which were procedural lapses but there are number of rulings in this regard in which Hon'ble Supreme Court has held that if any lacuna is left by the I.O. in conducting the investigation, its benefit should not be allowed to go to the accused unless they are so material in nature that the same would demolish the entire prosecution case. He further argued that no such serious lapses have been committed by the I.O., however, superficial things such as non filling the columns of challani documents are there but those infirmities should not be treated to be so serious so as to throw out the entire prosecution case and ultimately prayed that the impugned judgement should be upheld.

29. P.W.1, Ajay Kumar Mishra has stated in examination-in-chief that deceased Om Dutt Mishra was his father. He knows the accused, Raghuveer Singh, Bharat Singh, Naval Singh, Pahuchi Lal and Raghuni who are present in Court; the name of father of Raghuveer is Ram Swaroop and name of father of Raghuni is Ram Chandra but he does not know whether they were real brothers or not but they are treated to be brothers in the family. Raghuni is also known as Raghu Nath Singh and accused Naval Singh is also known as Navali @ Nirbal Singh. He does not know that Raghuveer and Pahuchi Lal are real brothers and accused Bharat Singh, Raghuveer etc. are uncles of accused. The accused, Bharat Singh runs buses and also does agricultural work. He has three buses and accused Raghuveer @ Raghuni and Bharat Singh are driver of the buses while Naval Singh was conducter in the bus of Bharat Singh. Accused Pahuchi Lal used to look-after the farming of Bharat but does not know whether he was his servant.

30. Further this witness has stated that he is resident of Fariha and his father was working in Animal Husbandry Department on the post of Assistant, in village, Keshpura which is four kms. away from his village. His father did not go to Keshpura every day as he used to do other work also. He had a motor-cycle by which he used to go there.

31. He has further stated that all the five accused were residents of village, Macharia which was located four to half kms. away from village, Fariha. If one would go Keshpur from Fariha, village Macharia would not fall on the way. If one travels towards Macharia, first of all, 100 metres away from the road, would lie village, Keshpura on the right side and if one further proceed ahead to the same road, to the left side would lie Macharia at a distance of about half kms. Keshpura would be little less than four kms. away from his village and Macharia would be little more than four and half kms away.

32. This witness has further stated that on the date of incident, his father was going from Jasrana to Mainpuri and the route was the same near which, Keshpura and Macharia villages are situated. About 12 years ago, the informant side had got a land allotted on patta (lease) from town area for the purpose of construction of house and when the house was being constructed on the same, the accused Bharat Singh had filed a case in Tehsil stating that he had patta on the said land in his name and in regard to this dispute, proceedings under Section 107 and Section 117 Cr.P.C. were also initiated which though were closed but the case in Tehsil continued even till after this occurrence. The case of Bharat Singh was dismissed in default. When the said case was proceeding in Tehsil, prior to the present occurrence, accused Bharat Singh had got few leases executed in favour of his nephew, Raghuveer Singh, brother-in-law (bhanja), Megh Nath Singh and some other relatives. On land situated in village, Macharia, against which the P.W.1's father had initiated legal action, to get those leases cancelled. After this when his father became president of Ram Lila committee, Bharat Singh etc. made an effort to get a lease of the land belonging to the Ram Lila committee which was obstructed by his father. On the Ram Lila Committee ground, which is located in village, Fariha, the relatives of accused, Raghuveer have land, regarding fencing (merbandi) of which, dispute continued to be there between relatives of accused, Raghuveer Singh and Ram Lila Committee. His father continued to be president of Ram Lila committee till the occurrence happened. Fifteen days prior to the occurrence, the dispute had erupted between his father and accused, Raghuveer Singh pertaining to fencing and threat had been given from both the sides that they would see each other. Behind P.S., Fariha, there is some land lying which is of Town Area, on which also accused, Bharat Singh was obstructing the informant side from pleading that they had already patta of the said land in their favour. Five to six days prior to this occurrence, accused Bharat Singh and his relatives had made an attempt to forcibly take possession of the said land by keeping bricks etc. in the night over the said land against which P.W.1's father had made a complaint and on the very next day, he also gave an application before S.D.M., whereon S.D.M. had sent Tehsildar and with the aid of police, Bharat Singh's possession was stopped. After that P.W.1 was informed that accused, Bharat Singh became highly annoyed and had started saying that Om Dutt Mishra should be killed, then only the said land would be possible to be taken into possession forcibly. In this regard P.W.1 also talked to his father in the night of 11.9.1987 and then he (P.W.1) sensed that Bharat Singh and others were trying to murder his father because his father also told him that they would meet S.P. and the District Magistrate tomorrow regarding providing security to him. This witness has also stated that he had told his father as to why he did not go to the S.H.O., Fariha whereon he apprised him that S.H.O., Fariha was annoyed with him and would not help him in this matter. His father had written a letter in the night itself on 11.09.1987, to C.O. and D.S.P., Mainpuri. After having written those letters, he had started to leave for Jasrana and Mainpuri at about 7:45 a.m. by motor-cycle no. U.T.M. 4352 and on that day P.W.1 was in his house. After 22-25 minutes of departure of his father, Dr. Nathu Ram Bharadwaj informed P.W.1 that the accused, Bharat Singh of Macharia had murdered his father near the culvert, whereafter P.W.1 reached the place of incident by motor-cycle.

33. Learned counsel for the appellant pointed out that the said version was not mentioned in the F.I.R. by this witness although, he is the person who had lodged the F.I.R.

34. This witness has further stated that he saw from a little distance, from the culvert, that on the place of incident, his father was lying dead having injuries and he was profusely bleeding. Near the said culvert, Jitendra Shanker, P.W.3 was lying in injured condition. Jitendra Shanker is the Samadhi of the deceased. His one leg was broken although he did not pay much attention to other injuries received by him. The motor-cycle of his father was lying beneath pulia (culvert). The cycle of Jitendra Shanker was lying on the road in broken condition and on the road, the shoes of his father were also lying. The keys of motor-cycle belonging to his father were also lying near the dead body of his father. There were marks of wheels of bus on the dead body of his father and all around the dead body, there were marks of wheel of the bus on the road. At a little distance from the place where the dead body of his father was lying, there was little blood found spread. He had found there Ashok Kumar Tiwari, Munna Lal etc. and many others beside Jitendra Shanker. He had a talk with these persons who apprised him about the incident and Munna Lal told him that it was the time not to cry rather he should take action, where-on he included the names of those persons who have perpetrated the crime and out of them who had assembled there, someone had placed a dhoti on the dead body of his father.

35. Pointing out the above portion of the statement of this witness, learned counsel for the appellants has argued that out of the entire version narrated above with respect of Ashok Kumar Tiwari and Munna Lal and many others having been met by P.W.1 on the place, nothing has been mentioned by the informant in F.I.R. and this entire statement is made before the Court for the first time by way of improvement in the prosecution version.

36. Further, this witness has stated that he came home on the motor-cycle of Nathu Ram and prepared written report at his house and in the said report he had mentioned all these details which were divulged by Munna Lal and Ashok Tiwari to him and, thereafter he gave this application at P.S., Fariha on the basis of which, the F.I.R. was lodged and the copy of the same was provided to him. He has proved Exhibit Ka.1 as the same report which was given by him at the P.S.

37. It was also pointed out by the learned counsel for the appellants by citing above piece of evidence that this witness had omitted the name of Jitendra, whom he met at the place of incident and from whom he came to know about the occurrence and has named only Munna Lal and Ashok Tiwari which is again an improvement in the prosecution version.

38. This witness in cross-examination has stated that he is real resident of Manikpur, P.S. Bhogaon but had started living in Fariha for at least 20-25 years and does not have any land in Manikpur, now which was there till three years ago, which had been sold by his father and some portion of which was sold by him. His father had 12 bighas of land in Manikpur and after the murder of his father about four bighas of land was left in his name which was sold by him. Prior to the murder of his father, he was having a medical-store also in Fariha till 1985-1986 for which he had a license also. In Manikpur, his grand-mother used to get the farming done on Batai who used to live there alone and no one else of his family was living there, although their house is still existing there.

39. He further stated that at Fariha village, he built house in 1980, in which, earlier, he was living on rent; Fariha is town area. The name of grand-father of his father was Ambika Sahai. Witness, Munna Lal never lived on rent in his house. Name of his mother is Omvati and his wife's name is Madhuri @ Madhu. He further stated that about 15 years ago, P.W.1 used to live in the house of Kishan Lal (father of Munna Lal). In the house of Kishan Lal, P.W.1 lived for 8 to 10 years and even at that time, the house of Munna Lal was separate from the house of his father, Kishan Lal. Family of Munna Lal was not living in the house in which P.W. 1 was living. He has further stated that the witness, Jitendra Shanker has a house in Firozabad also who is a teacher who teaches in village, Shaki although at the time of incident, he was teaching in Bhadau, he is his relative i.e. father of his sister's husband. His sister's husband, Ravi Shanker was loading in-charge in C.A. Glass Factory. At the time of occurrence, Jitendra Shanker was living in village. His sister's husband is six brothers, out of whom one had died because he was murdered.

40. He knows the accused persons in Court since year 1974/1975. They run buses from Fariha to Firozabad. He does not know whether accused, Raghuveer was permanent driver of the accused but he had seen Raghuveer driving the buses. He has further stated that as per his knowledge, all the accused belonged to the same family. Village Macharia is located about four to five kms. away from P.W.1's house. P.W.1's father was never chairman of Nagar Palika, Fariha. As per his knowledge, his father was never associated with the Congress party nor did he hold any post in Mainpuri Congress. His father did not have any shops rather had land enough for constructing the shop.

41. He further stated that his father had not been murdered in his presence, he was informed about this murder by Dr. Nathu Ram. He had lodged the report of this occurrence as per disclosure made to him by witness, Munna Lal, Jitendra Shanker and Ashok Kumar but he does not recollect whether name of Ashok Kumar was written by him in written report as an eye-witness or not. When he was shown Exhibit Ka-1 (written report), he stated that the name of Ashok Kumar was mentioned as a witness. The said Ashok Kumar S/o Brahmanand is the same person whom he has mentioned above as Ashok. Both Ashok and Munna Lal had told him that Raghuveer and Bharat Singh had assaulted his father by by iron-rod (saria) and tyre-liver and, thereafter had thrown him beneath the bus and was crushed.

42. Learned counsel for the appellant has pointed that Ashok Kumar and Munna Lal, witnesses on the basis of whose disclosure, this witness has stated to have written the F.I.R. have not been examined nor has it been mentioned in the F.I.R. that on the basis of their disclosures, he was lodging the F.I.R. and further it was pointed out that in F.I.R., a mention was made about an iron-rod having been used in causing injuries to his father while in the present statement, he has stated that he was beaten by iron-rod and tyre-liver which is an improvement in the prosecution version.

43. This witness has further stated that Jitendra Shanker S/o Gauri Shanker, P.W. 3 is resident of Village Sunao but stated it to be wrong that his sister was married to Jitendra Shanker. He further stated that the name of father of Munna Lal is Kishan Lal. Munna Lal had died and it is wrong to say that the house of Ashok Tiwari is situated in front of P.W.1's house. He has further stated that village Sairai and Nagla Fatch are situated about 800 metres and 500 metres away respectively from the place of incident. He does not know Raghuveer, Ram Sanehi, Ramveer and Mashi Lal of Sairai although he knows Naubat Singh Pradhan R/o Macharia. He stated it to be wrong that because of animosity on the basis of suspicion, he has mentioned their names as accused in the present case.

44. Jitendra Shanker Mishra, the injured eye-witness of this occurrence who is though related to the deceased (samadhi) has stated in examination-in-chief as P.W.3 that about 15 years ago, this occurrence happened on 12.09.1987 when he was going for teaching in Junior High School in Bhadau at his school and as soon as he reached about half km. away from Keshpura at about 8:15 a.m., he saw that five persons were assaulting his samadhi, Om Dutt Mishra by tyre-liver and iron-rod after encircling him. All these accused had come there in Bus No. UTE 9105 which was parked in slanting position near culvert. When Om Dutt Mishra reached there on motor-cycle and due to the bus parked in slanting condition, he did not get space to pass through there and had to stop his motor-cycle. Among those who had done marpeet, Pahuchi Lal was empty handed, Raghuveer was empty handed, Bharat Singh was having iron-rod. Naval Singh was having tyre-liver and accused Raghunath/Raghuni had also a tyre-liver. All these accused are residents of village, Macharia. After having seen these accused in Court, he stated that since occurrence had taken place 15 years ago, he is not able to recollect fully and was having some difficulty in recognizing them and also stated that accused Pahuchi Lal was not present in the Court. He further stated that as soon as he tried to rescue the deceased, the accused also had thrown P.W.2 on the ground by which his left leg was broken. He had become anxious and in that condition sometimes he was able to see and some-times his eyes were closed. He had seen the accused running over the bus above the deceased. About 50 to 60 paces away from the place of incident, Ashok and Munna Lal were standing quietly and were not coming near him. Subsequently some more passer-bys assembled there. P.W.2's cycle was also parked there which was also thrown and was broken. The motorcycle of the deceased was thrown in ditch by the side of road. His samadhi had died on the spot and he himself was sent to Firozabad district hospital where he was given treatment and by doctor Ganesh, his x-ray was conducted, plates of which were filed by him today and thereafter after getting admitted with Dr. Rakesh Agrawal, treatment was given for his broken leg. He further stated that on the fracture of bone on his left thigh, he had to be operated and sealed rod was put in. He had shown after opening the left thigh that upon the knee, there were six long cut injuries which was old and healed and that he had remained hospitalized for three months on bed-rest. He also stated that in the bus by which the accused had come, he did not have any other passengers.

45. In cross-examination this witness has stated that the I.O. had recorded his statement 11 days after the incident when he was admitted in Nursing home. He had not stated to the I.O. that he had not seen any passengers in the bus but could not tell its reason why the same was written by I.O. He had stated to the I.O. that when he had gone to Dr. Ganesh for treatment, he did not ask him how he received these injuries nor he disclosed on his own, but he had disclosed to Dr. Rakesh Agarwal that these injuries were received by him in marpeet.

46. Pointing out this statement the appellants' counsel had pointed out that there was no documentary evidence in support of this that he had told Dr. Rakesh Agarwal about the injuries having been received by him in the marpeet. Further this witness has stated that his school timing was 7:00 to 11:30 a.m. The school was situated at a distance of ten and a half km. He had seen the occurrence for the first time from distance of 5-6 paces. At that time, there was no one else on the road except him, Mishra Ji and the accused; the witnesses had come there ten minutes after P.W.1's reaching there.

47. Citing the above piece of evidence, learned counsel for the appellants argued that this statement would reveal that Ashok and Munna Lal had reached the place of occurrence after the marpeet had already taken place.

48. He further stated that he knew witness Munna Lal since long. His shop of carpenter was situated one and half kms. away from the place of incident. The place where incident took place was not visible from the shop of Munna Lal. Munna Lal used to live in Kasba of Fariha and he died of illness two to three years ago. He does not have any relationship with Ashok nor does the deceased had any relationship with him; Ashok had a shop of expeller in Fariha on tri-section. From the place of incident, his shop was located about four kms. away. His house and expeller are located close to each other. From the place of incident, the village of P.W.3 is situated at a distance of about three and half kms. Broken cycle was not returned to him nor did he give any application in court for its possession. He also did not have any receipt of this purchase. He did not get to see that cycle after the same was broken. He denied that he had not gone on the cycle. This witness has further stated that he had never done the work of motor, for fixing valves of motor, 400-500 tools would be required, he does not know. He knows tyre-liver which is of iron and used for taking off tyre. Tyre livers are of big and small in size, he does not know. Tyre-liver is thick on the one side while on the other side, it is thin, which side is used for taking off the tyre. He has seen Gadela (an instrument/an implement used to digging soil) which is normally thick on the upper side and is thin on the side by which the soil is dug. He used to go by bus from Fariha to Firozabad but does not remember the number of buses plying on that route. It is wrong to say that Bus no. U.T.E.-9105 was in disorder and could not be run on the route. Further this witness has stated that after the occurrence, the bus was being driven by Raghuveer Sigh and not by others. The said bus was five paces away from cycle and its face was towards Fariha. The cycle was lying to the north of the road. The road on which occurrence took place goes from east to west which is about 12 feet in width and on either side of road, ditches were there. On travelling towards east from the said culvert, towards Nagla Fateh, on either side of road, there are ditches. The road which leads from Macharia, has drains, which is situated towards north of the road on which occurrence took place. The said drain would be about five metres away from the middle of the road. On either side of the place of incident, there are fields which were lying uncultivated and were full of water. The motor-cycle was lying at one mtr. away from the bus, which was lying two mtrs. behind on the northern side. In the process of rescuing the deceased, he had tried to drag Om Dutt Mishra (deceased) who was being assaulted, after being surrounded by accused. He tried to penetrate the circle and drag away the deceased though he himself remained safe initially but he was thrown down thereafter and then he received an injury of iron-road. He has stated it to be wrong that when he entered the circle to save Mishra Ji, he received number of injuries of tyre-liver. He has further stated it to be wrong that he was falling upon Mishra Ji while he was being beaten. Further he has stated that he had shifted to the north about two mtrs. away from the culvert where Mishra Ji was being beaten. When he became unconscious, by that time Mishra Ji had already been beaten for three to four minutes. He does not recall as to when police had arrived. He was dispatched after half an hour of the incident by tractor of Om Dutt Mishra to Firozabad. The said tractor was being driven by some driver and he would have taken about two and half hours in reaching there. He stated it to be wrong that he was not beaten by accused and he fell down from the cycle by which he got injuries. He denied that because of being relative of deceased, he was making false statement.

49. Ashok Kumar, S/o Brahmanand (P.W.4) who is independent witness has stated in examination-in-chief that on 12.09.1987 when he was going from Fariha to Korahi to purchase Mustard at about 8:15 a.m. and when he reached near culvert, he found Bus No. U.T.E. 9105 vehicle parked in slanting condition blocking the road. He saw there that deceased, Om Dutt Mishra was being beaten by accused, Bharat Singh, Raghuveer, Raghunath, Raghuni, Naval Singh, Pahuchi Lal, R/o Macharia. Among these accused, Bharat Singh was armed with rod, Raghuni, Naval Singh @ Navale were armed with tyre-liver. Raghuveer and Pahuchi Lal had thrown the deceased, Mishra Ji and rest of the three accused were assaulting the deceased. In the meantime, Jitendra Shanker, P.W.3 tried to intervene and defend Mishra Ji; after the marpeet, the condition of Mishra Ji became that of half dead; Bharat Singh stated that he had not died as yet hence, he should be crushed under the bus, thereafter Raghuveer started the said vehicle and crushed Mishra Ji and Jitendra Shanker was also crushed. The motor-cycle belonging to Mishra Ji had been thrown behind the trees of Behaya behind the culvert, thereafter Pahuchi Lal had taken off the bag which was hanging by motor-cycle and fled towards Mustafabad. Mishra Ji had died there only while Jitendra Shanker was lying in badly injured condition by the side of culvert. After having seen all the four accused, he stated that these were the accused who had killed the deceased and had done marpeet, although Pahuchi Lal was not present among them. He further stated that he continued to stay behind even after the occurrence till the evening, at the place of incident. The motor-cycle was given in supurdagi in his presence and he recognized his signature at supurdaginama, Exhibit Ka-4.

50. In cross-examination, this witness has stated that the occurrence had happened about 29-30 years ago, therefore, he does not recollect the correct time. He knew informant, Ajay Kumar Mishra from prior to the occurrence who was living, across the road, in front, near his house with whom he used to exchange pleasantries. He also knew Jitendra Shanker who got injured in this occurrence, since five to six years ago; son of Jitendra Shanker had married the daughter of Om Dutt Mishra (deceased). None of these accused had studied with him nor did he have any business relationship with them but on his own stated that he knew them because they were running bus in Fariha and he used to board the said bus after making payment. He does not know as to who was the owner of Bus No. U.T.E.9105 from amongst the five accused; probably the same was owned by accused Bharat Singh. This witness has further stated that I.O. had recorded his statement on the date of occurrence, at the place of incident itself and to him he had stated that on the date of incident, he was going to village Karari. He further stated that he also stated to I.O. that today on 12.09.1987, due to urgent work, he was going by cycle towards Mustafapur, further clarifying that he was going to Korari for purchasing Mustard, but he could not tell its reason as to why the same was not mentioned in his statement by I.O. He had also stated to I.O. that Bus No. U.T.E. 9105 was belonging to Bharat Singh which came from Mustafabad on the culvert where Om Duttt and Jitendra Shanker were talking to each-other and accused tried to run over that vehicle over Mishra Ji, who stepped back and tried to flee from there because of apprehension, but if the same was not written by I.O., he could not tell its reason, however, he did not have any enmity with I.O. He had seen this occurrence from distance of about 50 paces from the place where bus was parked, from Southern side and had pointed out the said place to the I.O. and by his side was standing Munna Lal. He knew Munna Lal since 15-20 years prior to this occurrence. He also told I.O. about the said bus being parked in slanting position but when he read out his statement under Section 161 Cr.P.C., he admitted that the same was not recorded in it but he cannot tell as to why the same was not written. He has further stated that it was right to say that deceased, Mishra Ji had been thrown out on the ground by Raghuveer and Pahuchi Lal; he had not seen Jitendra Shanker and Om Dutt Mishra talking to each-other. There was some blood on his kurta although no other cloth was having any stain of blood. The bleeding was happening from his ear in drops.

51. Further he has stated that the place where the occurrence happened was a kutcha road, however, there was also a metal road. Towards north of the said metal road, from the edge of the road up to the ditch, there would be kuttcha space of about four to five paces. It is wrong to say that after the marpeet having been done, Om Dut Mishra had been dragged on metal road. From the northern side of the pucci road, culvert was about four to five paces away. It is wrong to say that the injured, P.W.3 was lying between road and the culvert. After this marpeet, there was another culvert in the vicinity by the side of which, the injured was sitting who was in tremendous pain and was groaning. He does not have any idea as to how much distance the other culvert was located at from the first culvert and in which direction. He was about 50 paces away towards west from the first culvert. The place where Om Dutt Mishra and Jitendra Shanker were beaten, is one and the same. The place where Jitendra Shanker was sitting after having been beaten and was groaning was about 10 to 15 paces away from the place where the marpet took place. Witness, Latoori R/o Sheetal Pur had helped Jitendra Shanker in reaching the second place where he was made to sit, after being picked up, although he did not say about this to any police officer or to the informant or any other witness.

52. Learned counsel for the appellants has argued after citing the above piece of evidence that in the site-plan, there was no other culvert shown and even I.O., when he was enquired, did not say that there was any other culvert situated at the place of occurrence.

53. Further this witness has stated that the motor-cycle which belonged to the deceased was pushed in the bushes of Behaya by accused, Raghuni, Bharat Singh and Naval and that the keys of motor-cycle were lying near the dead body. He could not tell as to how the keys came to be found near the dead body. Jitendra Shanker was trying to defend the deceased from the said marpeet and, hence, he also has received injuries and the said marpeet continued for about four to five minutes. After the incident was over, he (P.W.4) continued to stay back there only at the instance of informant, Ajay Mishra. For lodging the report, Ajay Mishra had come first at the P.S. and the police had reached subsequently. Ajay Mishra was taken there by Dr. N.R. Bharadwaj on his motor-cycle and had returned with him only. In all this, about 10 to 15 minutes would have been taken by Ajay Mishra and by 8:30 p.m., he (Ajay Mishra) would have returned. Further he has stated that the police had reached the place of occurrence at about 11:00 a.m. and remained there till 5:00 p.m. The dead body was sent for post-mortem at about 5:30 p.m. The injured Jitendra Shanker was dispatched to Firozabad hospital at about 9:00 a.m. on the date of occurrence by a tractor belonging to Ajay Mishra. After this occurrence at about 8:30 a.m., informant had reached the place of incident and after the dead body was dispatched from there, he remained there only till evening till about 5:30 p.m. whereafter he (P.W.4) returned. He denied that he had not seen any ocurrence and because of being friend of Ajay Mishra, he was making false statement.

54. P.W.5, Ganesh Shanker Sharma has stated that on 12.09.1987, he gave treatment to Jitendra Shanker on his clinic in Firozabad and had found fracture in left femer bone. He has proved his report as Exhibit Ka-5 and the x-ray plate as material Exhibit 1. Jitendra Shanker was referred to him by S.N.M. Hospital.

55. In cross-examination, this witness has stated that the column was unfilled in Exhibit Ka-5 with respect to the place from where he was referred.

56. P.W.6, Dr. Rakesh Kumar Agarwal has stated that Jitendra Shanker (P.W.3) had come to him for treatment on 13.09.1987 who was suffering from fracture on left femer shaft, whom he had treated and issued certificate on 24.09.1987 and had given him advise to take bed rest for three months. He has proved his certificates as Exhibit Ka-6.

57. In cross-examination this witness has stated that he did not have record of the treatment of this patient which is normally distroyed after three years. Prior to issuing the certificate, he did not know that this was medico-legal case.

58. P.W.8, Dr. Rajendra Kumar has stated that on 13.09.1987, he had conducted post-mortem of the deceased, Om Dutt Mishra who was brought by Constable No. 574, Rajvir Singh and Constable No. 279, Shiv Ram Singh of P.S. Fariha who had died one day ago and had found following ante-mortem injuries on his person:-

	 (i)	    Abrasion 1.5 inches x 0.5 inches at left maxilla. 
 
(ii)         Multiple abrasions 5 inches x 4 inches at right side of face.
 
(iii) Abrasion 5 inches x 3 inches at right side of neck. 
 
(iv) Multiple abrasions 11 inches x 8 inches, at right side of shoulder on the front upper chest.
 
(v) Abrasion 6 inches x 3 inches on the right upper arm on upper portion. 
 
(vi)  Contusion 4 inches x 2 inches at right deltoid region. 
 
(vii) Abrasion 9 inches x 4 inches at right fore-arm along with right elbow joint outer part. 
 
(viii) Abrasion 7 inches x 3 inches on left chest outer part. 
 
(ix)  Abrasion 10 inches x 3 inches on left upper arm outer part. 
 
(x) Abrasion (two in numbers) 2 inches x 1 inches size of fore-arm, middle and outer part, chest, upper abdomen, slightly outer part. 
 
(xi) Abrasion 11 inches x 6 inches on left side chest. 
 
(xii) Contusion 8 inches x 4 inches on left thigh upper part. 
 
(xiii) Abrasion multiple 15 inches x 5 inches on patella.
 
(xiv) Abrasion 5 inches x 3 inches on arm.
 
(xv) Abrasion 2 inches x 1/2 inches on left leg in the front. 
 
(xvi) Abrasion 2 inches x 1/2 inches on the right side hip outer part. 
 
(xvii) Abrasion 15 inches x 3 inches at right thigh outer part. 
 
(xviii) Contusion 4 inches x 2 inches. Skin deep outer part. 
 
(xix) Lacerated wound 2 inch x 1 inch on right side testicles outer part. 
 
(xx) Abrasion 8 inches x 2 inches right side thigh medial. 
 
(xxi) Abrasion 3 inches x 2 inches on right tibia. 
 
(xxii) Abrasion 8 inches x 3 inches on right knee under the outer part in places.
 
(xxiii) Lacerated wound 3 inches x 2 inches right ear, lacerated full of dust, radius and ulna of the left hand broken.
 
(xxiv) Abrasion .5 inch x .5 inch on the left of nose. 
 
(xxv) Fracture on both radius. 
 
	(xxv)	       Fracture right side iliac. 
 
      	(xxvi)         Dislocation of right elbow.
 
      	(xxvii)        Fracture of nasal bone. 
 
59.	He has mentioned the cause of death to be haemorrhage and excessive bleeding as a result of ante-mortem injuries and death was found to have occurred one day prior to the conducting of post-mortem and has proved its report as Exhibit Ka-11 and has stated that the deceased could have died on 12.09.1987 at 8:15 a.m. by the injuries caused to him by the iron-rod and by being crushed under bus. 
 

60. In cross-examination this witness has stated that abrasions could be received, if injuries were caused by friction against hard object. With respect to injury nos. vi to xviii, he had not mentioned colour but could not tell its reason. In a person, who is alive, with the progress in time, the changes may be noticed in colour of contusions. The dead body was brought to the hospital on 12.09.1987 at about 10:25 p.m. If deceased was riding a motor-cycle and the same gets entangled in a wheel of truck and gets dragged for about one km., such kind of injuries could be received by the deceased. It is wrong to say that if the injuries are caused by 'lathis' and iron-rod, no abrasion would be caused because if lathi injuries are caused by these weapons, the abrasions could be caused.

61. The court has also examined Constable Shanti Swaroop, C.W.1 of district Firozabad who has stated that he had received report from court in respect of death of accused, Raghuveer S/o Ram Swaroop through P.S. concerned in pursuance of which on 27.06.2016, had reached village Macharia and found out whether Raghuveer Singh had died, he came to know from his family members that he had died about 15 years ago and, hence, he had submitted the death report of the accused in his hand-writing which are paper nos. 139 and 140.

62. According to the prosecution, when informant's father Om Dutt Mishra (deceased) was going from his home to Jasrana and reached the place of occurrence near Macharia village, Bus No. UTE 9105 was parked there by accused side in slanting position so as to obstruct the road because of which informant's father had to stop there his motor-cycle and from the said bus, accused Bharat Singh, Raghuveer Singh, Pahuchi Lal etc. got down along with their companions and started assaulting the informant's father by iron-rods and thrown him on the road. At that very moment, P.W.3 Jitendra Shanker came there on cycle and when he saw that the deceased was being beaten, he tried to intervene; he also was thrown beneath the bus. At that very time, Ashok and Munna Lal (not examined) and other passers-by also reached there and in the meantime the cycle of the Jitendra Shanker which was there, was also crushed. In this occurrence, the informant's father died on the spot and Jitendra Shanker was badly injured who was sent to the district hospital, Firozabad. The truthfulness of the said version needs to be analysed in the light of the site-plan, Exhibit Ka-20 prepared by the I.O. in which at place 'B' is shown where deceased came by his motor-cycle and by 'C' is shown the place where cycle of injured, Jitendra Shanker was kept. By 'E' is shown the place where the motor-cycle of deceased, Om Dutt Mishra was found in trees of Behaya; by X is shown the place where the accused had assaulted the deceased and injured had tried to rescue him; by 'O' is shown the place where deceased was lying in half dead condition and was thrown underneath the bus and was crushed by Raghuveer by bus. The width of road is mentioned eight paces and at the place where culvert is shown, the width of that culvert is shown 12 paces North South.

63. In support of the prosecution case, Ajay Kumar Mishra has been examined as P.W.1 but he is not an eye-witness of the case and has written the F.I.R. only on the basis of what was told to him by P.W.3 who had got injured in this occurrence. Ashok Kumar (P.W.4) who is an eye-witness and Jitendra Shankar Mishra (P.W.3) who is injured have stated in support of prosecution case that all the accused had surrounded the deceased, Om Dutt Mishra and assaulted him with their respective weapons whereon he reached there and found that the Bus No. UTE 9105 was standing there in slanting position because of which Om Dutt Mishra could not pass through that road who had come there by motor-cycle and when he stopped there then this occurrence was committed by the accused side. When P.W.3 tried to rescue the deceased, the accused had thrown him by which his left leg had broken. The motor-cycle of the deceased was also thrown in ditch and the deceased had died in front of him due to injuries caused to him by the accused. This witness was cross-examined at length by the defence side but nothing such could be elicited from him in cross-examination which would cause any doubt in our mind in respect of his presence at the place of occurrence. The statement made by him is consonance with the site-plan which is mentioned upon. This witness was going to teach in Hadao Junior School where he used to go to teach on cycle and he happened to reach there at the time when this occurrence was happening, therefore, it cannot be held that his presence could not be taken to be natural there because it would have been his regular routine to pass through that way. P.W.3 used to go to school between 7:00 a.m. and 11:30 a.m. while this occurrence has happened at about 8:15 a.m., therefore, it is quite believable that he would have been passing through that way when he saw this occurrence and tried to rescue the deceased and in the process, he also got injuries. Learned counsel for the appellants had argued that he is a related witness as he was samadhi of the deceased, therefore, he being a partisan witness, his testimony should be discarded. We are not inclined to accept the argument of the learned counsel for the appellants in this regard because it is settled law that the testimony of the related witness cannot be discarded into totality. The only precaution which is required to be taken is that the testimony of such a witness should be scrutinized meticulously and if the same is found to be believable, even if partially, then that part which is found to be believable has to be believed and on that basis conviction can be held.

64. Dr. Ganesh Shanker Sharma, P.W.7 had found fracture of left femer when he examined P.W.3 on 12.09.1987 who has proved the said medical report in respect of this witness.

65. P.W.6, Dr. Rakesh Kumar Agarwal has also stated that he also treated Jitendra Shanker (P.W.3) who was suffering from fracture of left femur. No cross-examination has been made from the side of defence with respect to this witness having suffered the said injury. According to the prosecution, the said injury was received by this witness when he tried to rescue the deceased, Om Dutt Mishra, therefore, this witness is found to be an injured witness whose presence is found to be established on the basis of his testimony as well as testimonies of the above-mentioned doctors. 

66. Another witness i.e. Ashok Kumar who has been examined as P.W.4 has also supported the above-mentioned prosecution case who on 12.09.1987 was going to purchase mustard at the same time when this incident happened and when he reached near the culvert near village, Macharia, had also seen Bus No. UTE 9105, parked in slanting position, blocking the passage and had also seen the above named accused, assaulting deceased Om Dutt Mishra. Bharat Singh was having a rod, accused Raghuni and Naval Singh @ Navale had tyre livers. Raghuni and Pahuchi Lal had thrown the deceased on ground and rest of the accused were assaulting the deceased. He also stated that Jitendra Shanker reached there to save the deceased and he also received injuries in this occurrence and, thereafter, Raghuveer after starting the said vehicle, crushed the deceased, Om Dutt Mishra and by impact of the bus, the leg of Jitendra Shanker had also broken and his cycle was also crushed. In the site-plan, this witness has been shown to have seen this occurrence from the place shown by 'F'. He has also been cross-examined at length but except some minor discrepancies, nothing substantial has been noticed so as to disbelieve his statement and his presence, despite the fact that he is chance witness, cannot be disbelieved by us. It is also important to note here that the deceased received in this occurrence as many as 27 injuries which have been cited above and Dr. Rajendra Kumar, P.W.8 has proved such injuries which he had found in post-mortem of the deceased which is Exhibit ka-11 and this witness has clearly stated that the deceased could have died on 12.09.1987 at 8:15 a.m. by the said injuries which could have been caused to him by iron-rods and also by crushing under the bus. He has been cross-examined in detail by defence side but nothing such could be elicited which would make us disbelieve his testimony and we find that the injuries in post-mortem of the deceased stand fully corroborated by the statements given by P.W.3 and P.W.4 who are eye-witness of this occurrence.

67. It may also be mentioned here that occurrence as per prosecution is said to have taken place on 12.05.1987 at 8:15 a.m. and its report was lodged by P.W.1, Ajay Kumar who is son of the deceased promptly on the same day at 9:30 a.m. though distance between the place of occurrence and police-station was four kms., there was hardly any possibility for the informant to implicate any person falsely as there was no opportunity to him to consult anyone. Learned counsel for the appellants had argued that the other police documents such as challan-lash, photo-lash etc. do not bear the details of the case and that relevant columns were left blank which would suggest that the F.I.R. was ante-timed and all these documents were manipulated with a view to falsely implicating the accused, we are not inclined to accept this argument of the learned counsel for the appellants because if these lacunae are left by the prosecution/I.O. that would be treated to be lacunae left in investigation for which the I.O. needs to be condemned but no benefit would be allowed to go to the accused side only because of such lacunae. In this regard we would like to rely upon the law laid down by the Hon'ble Apex Court in Ajay Kumar Singh Vs. Flag Officer Commanding-in-Chief and others 2016 9(SCC) 179 in which it has been laid down that lapses on the part of the prosecution while proving incriminating evidence, the Criminal trial should not be made casualty for such lapses in investigation by I.O.

68. Next we would like to take up the motive for causing this occurrence. In the statement of P.W.1, informant of the case, it has been stated that there was litigation pertaining to land between the complainant side and the accused side with respect to which cases under sections 107 and 117 Cr.P.C. had been contested between two sides. Some leases were got executed by the accused side in their favour which were being opposed by the deceased, Om Dutt Mishra, informant's father (deceased) in this case who was also a chairman of the Ram Lila Committee. In the capacity of the chairman, there was also some dispute between him and the accused side as the accused wanted to grab some land which belonged to the Ram Lila committee and the deceased was continuously opposing the leases to be executed in favour of the accused belonging to the said committee and few days prior to that occurrence quarrel had happened between two sides in that regard. P.W.1 has established that there was motive to the accused side to give effect to this occurrence.

69. From the side of defence, it was vehemently argued that the deceased died on account of accident which might have happened and only with a view to falsely implicating the accused, the present case has been slapped against them by the informant due to enmity. It was also argued that the injuries which are found on the person of the deceased also indicate that there could be injuries having been received by the deceased on account of accident not in the manner as is being stated by the prosecution side, we are not inclined to accept this argument because we have already found that ocular testimony corroborates the medical evidence which has come on record. We have also injured eye-witness account which clearly goes to show that it is the accused-appellants who committed this offence in which the deceased died and P.W.3 received injuries.

70. In view of the above analysis, we come to the conclusion that all the accused appellants had formed an unlawful assembly and in prosecution of its common object to murder the deceased, Om Dutt Sharma, assaulted the deceased by the iron-rod, tyre-liver and also by using this Bus No. U.T.E.9101 which resulted in death of the deceased and when the P.W.3 reached there to save the deceased, he was also assaulted and he also received injuries in this occurrence, therefore, we do not find any infirmity in the impugned judgement. Since only two accused, Bharat Singh, Nirbal Singh @ Nawal Singh are now left alive, therefore we uphold the conviction of these two appellants under the above-mentioned sections.

71. Their appeal stands dismissed.

72. They are already on bail, therefore, their bail bonds and personal bonds stand discharged. They are directed to be taken into custody to serve out the remaining sentence.

73. Let a copy of this judgement be transmitted along with lower court record to trial court to ensure that these two accused Bharat Singh, Nirbal Singh @ Nawal Singh are taken into custody and serve out the remaining sentence as per law.

(Dinesh Kumar Singh-I,J.) (Ramesh Sinha,J.)

Order Date:- 17.05.2019

A. Mandhani