Jagdish vs State Of U.P.
2021 Latest Caselaw 6886 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							Reserved on 16.03.2021
 
							Delivered on 01.07.2021
 
						
 
					REPORTABLE
 
Court No:- 49
 
Case:- CRIMINAL APPEAL No. - 3271 of 2011
 
Appellant:- Jagdish
 
Respondent:- State of U. P.
 
Counsel for Appellant:- Rajul Bhargava, A. C. Tiwari, Indra Jit Singh, Manoj Kumar Rajpal, Rajeev Kumar Singh, Yogesh Srivastava
 
Counsel for Respondent:- Govt. Advocate
 
With
 
Case:- CRIMINAL APPEAL No:- 3210 of 2011
 
Appellant:- Manoj Kumar
 
Respondent:- State of U. P.
 
Counsel for Appellant:- P. C. Pandey, A. C. Tiwari, Arvind Kumar Trivedi, Indra Jit Singh, Manoj Kumar Rajpal, Rajeev Kumar Singh, Tej Pal, Yogesh Srivastava
 
Counsel for Respondent:- Govt. Advocate
 

 
Hon'ble Bachchoo Lal, J.

Hon'ble Sanjay Kumar Pachori, J.

(Delivered by Hon'ble Sanjay Kumar Pachori, J.)

1. The present appeals have been preferred by the appellants against the common judgment and order passed by Additional District & Sessions Judge, Court No. 2 Mathura, on 16.5.2011 and 18.5.2011 in Sessions Trial Nos. 40 of 2008, 207 of 2008, 208 of 2008, and 73 of 2008 arising out of Case Crime No. 681 of 2007 Police Station1 Highway, District Mathura, whereby the appellants Jagdish and Manoj Kumar have been convicted for the offences punishable under Section 302 read with 34 of Indian Penal Code (in short "I.P.C."). The punishment awarded to the appellants for their conviction noticed above is as follows; imprisonment for life with a fine of Rs. 20,000/- each and default sentence of one year under Section 302 read with 34 of I.P.C. Learned trial court acquitted other co-accused Raghunath and Sahukar under Section 302 read with Section 34 of I.P.C. and the appellants Jagdish and Manoj Kumar under Section 25 of Arms Act and no Government appeal/s was/were reported to be pending against the aforesaid acquittal. Since the abovementioned appeals arise from a common judgment of the trial court, it will be proper for us to deal with these appeals in a common judgment.

PROSECUTION CASE

2. The brief facts of the case, as unfolded by the prosecution are as follows: On 10.11.2007, at 10:35 A.M., Mangal Singh (PW-1), the father of the deceased Kamal Singh, gave a written complaint (Ex.Ka.-1) at P.S. Highway, District Mathura, stating that his son Kamal Singh (deceased) returned back after attending the call of nature on 10.11.2007 at about 9:30 A.M. then Manoj and Jagdish, who had skimmers (Paunia/unlicensed gun) in their hands and Raghunath Singh and Sahukar, who had lathies in their hands, surrounded his son in the field of Prem Singh; then Raghunath and Sahukar shouted that his father poses himself to be great litigant, kill him and don't let him escape, at the same time Manoj and Jagdish shot fire at his son Kamal Singh with their skimmers (Paunia/ unlicensed gun). On hearing the gunshots, he along with his elder son Lakhan (PW-2), who were standing on the tubewell of Prem Singh, reached the spot. After hearing the noise, Raghuvir Singh, Moolchand, (not examined) and his 15 years old daughter Rekha (PW-3), who was coming from the field after dumping the cow dung, rushed to the spot. On seeing many people coming from the village, accused persons fled away towards their house threatening them to kill. Injured Kamal Singh, who tried to run towards his house after being shot, fell on the ground after 15-20 steps and died on the spot.

3. On the basis of a written complaint (Ex.Ka.-1) of Mangal Singh (PW-1) which was scribed by Mahavir Singh, an FIR dated 10.11.2007 (Ex.Ka-16) was registered as Case Crime No. 681 of 2007 under section 302 I.P.C. against the appellants and co-accused Raghunath Singh, and Sahukar at PS. Highway, District Mathura, at 10:35 A.M. by Head Constable2 124 Ramesh Chand (PW-5) and he entered the FIR in G.D. Report No.19 at 10:35 A.M. on 10.11.2007 (Ex.Ka.-17). The distance between the place of the incident and the Police Station is 16 Km. The special report (SR Report) of the present case had been sent to the Magistrate on the same day at 16:20 hours. After lodging the F.I.R. of the case, Sub-Inspector3 Rakesh Kumar Awasthi (Station House Officer4/PW- 4) himself took over the investigation of the case and he along with S.I. Netrapal Sharma (not examined) reached the place of occurrence. S.I. Rakesh Kumar Awasthi after inspecting the place of the incident, as pointed out by the informant (PW-1), prepared a site map (Ex.Ka-2) of the place of the incident. He also recovered blood-stained and plain earth from the place of the incident in presence of witnesses and prepared a seizure memo (Ex.Ka-3). The proceedings of the inquest were commenced at 11:05 A.M. and completed at about 12:15 P.M. by S.I. Netrapal Sharma under the direction of S.I. Rakesh Kumar Awasthi and in presence of Panchan (witnesses) at the spot and the inquest report (Ex.Ka-4) and other police papers i.e. letter to Chief Medical Officer, Photo Nash, Challan Lash and letter to R.I. (Ex.Ka-5 to Ex.Ka-7 and Ex.Ka.-24) were prepared for getting a post-mortem of the body of the deceased. The body of the deceased was sent for autopsy along with copy of the Chick FIR (Ex.Ka.-8) and other police papers through Constable No. 448 Ratan Kumar and Constable No. 147 Ashok Kumar. The statements of eyewitnesses Mangal Singh, Lakhan Singh, Raghuvir Singh and Moolchand have been recorded by the investigating officer5, under Section 161 Cr. PC. on 10.11.2007.

4. PW-7 Dr. Surendra Singh conducted the post-mortem examination of the body of the deceased on 10.11.2007 at 3:40 P.M. and opined that the cause of death was shock and haemorrhage due to ante-martem injuries. The post-mortem report (Ex.Ka.-23) disclosed multiple firearm ante-mortem injuries on the corpse of Kamal Singh (aged about 18 years). These are as under:

1. Multiple wounds of entry of firearms size 0.5 cm x 0.5 cm skin deep present on right arm and forearm, margin inverted.

2. Multiple wounds of entry of firearms size 0.5 cm x 0.5 cm x cavity deep present on both chest and neck, margins inverted.

3. Multiple wounds of entry of firearms size 0.5 cm x 0.5 cm skin deep present on front of abdomen, margins inverted.

5. The doctor further opined that during the post-mortem, 10 pellets (3 from heart, 2 from the right lung, 3 from the left lung, and 2 from the liver) were recovered from the corpse which was handed over to the concerned constable in a sealed cover envelope. The membranes of the brain of the deceased were yellow, and accumulated blood was present, both lungs were torn, the stomach was empty, liver was torn, both kidneys were also yellow. The doctor further opined that death might have been caused 8 hours earlier to the post-mortem.

6. During the investigation, on 13.11.2007, co-accused, Sahukar and Raghunath Singh were arrested, and thereafter they were sent to jail after recording their respective statements. On 23.11.2007 PW-4 S.I. Rakesh Kumar Awasthi also arrested the appellant Jagdish, his statement was recorded and as pointed out by the appellant Jagdish recovered a skimmer (Paunia/unlicensed gun) .12 bore, four live and one empty cartridge, from the bushes near Pokhara Kachchi Road in presence of witnesses and seizure memo (Ex.Ka.-9) was prepared. Thereby, he has committed offence, on the basis of recovery made, an F.I.R. of Case Crime No. 708 of 2007 (Ex.Ka.-21) was registered against the appellant Jagdish under Section 25 of Arms Act at PS. Highway, Mathura. All the articles recovered during the investigation were sent for forensic examination. After completion of the investigation on 3.1.2008, a charge sheet (Ex.Ka.-11) was submitted against the appellants Jagdish and co-accused Raghunath Singh and Sahukar in Case Crime No. 681 of 2007 under Section 302 I.P.C. The prosecution has not examined the witnesses of the inquest report (Ex.Ka.-4) and S.I. Netrapal Sharma, who completed the proceedings of the inquest and prepared the inquest report (Ex.Ka.-4) and other related police papers (Ex.Ka.-5, Ex.Ka.-6, Ex.Ka.-7, and Ex.Ka.-24) which have been proved by PW-4 S.I. Rakesh Kumar Awasthi as secondary evidence.

7. S.I. Kunwar Singh (PW-6) after receiving the investigation of Case Crime No. 708 of 2007, under Section 25 of Arms Act, on 25.11.2007 prepared a site map (Ex.Ka.-18) of the place where the skimmer (Paunia/unlicensed gun) .12 bore was recovered and after completion of the investigation submitted a charge sheet under Section 25 of Arms Act, (Ex.Ka.-19) against the appellant Jagdish.

8. Proceedings under Section 82 and 83 of Code of Criminal Procedure, 1973 (in short "Cr. PC.") were initiated against the appellant Manoj Kumar by the competent court. Pursuant to which the appellant Manoj Kumar surrendered before the court concerned on 28.01.2008 and was sent to jail. The statement of the appellant Manoj Kumar had been recorded in jail by the I.O. After taking police custody remand of appellant Manoj Kumar on 3.2.2008, The I.O. recovered a skimmer (Paunia/ unlicensed gun) .12 bore, two live and one empty cartridge, on pointing out of the appellant Manoj Kumar from the bushes of Babool near Bohara Pokhara Road in presence of witnesses and seizure memo (Ex.Ka-12) was prepared. Thereby, he has committed offence, on the basis of recovery made, an F.I.R. of case crime no. 59 of 2008 under Section 25 of Arms Act (Ex.Ka.-27) at P.S. Highway, Mathura was registered against the appellant Manoj Kumar. All the articles recovered during the investigation were sent for forensic examination. After completion of the investigation on 3.2.2008, a charge sheet (Ex.Ka.-13) in Case Crime No. 681 of 2007 under Section 302 I.P.C. was submitted against the appellant Manoj Kumar.

9. S.I. Veeresh Kumar (PW-8) also after receiving the investigation of Case Crime No. 59 of 2008, under Section 25 of Arms Act on 3.2.2008 prepared a site map (Ex.Ka.-24) of the place where skimmer (Paunia/unlicensed gun) .12 bore was recovered and after completion of the investigation submitted a charge sheet (Ex.Ka.-25) under Section 25 of Arms Act against the appellant Manoj Kumar.

10. Upon completion of the investigation of Case Crime Nos. 681 of 2007, 708 of 2007, and 59 of 2008, the investigating officers submitted the charge sheets, upon which cognizance was taken by the concerned Magistrate and thereafter, the cases were committed to the Court of Sessions giving rise to Sessions Trial Nos. 40 of 2008, 207 of 2008, 208 of 2008, and 73 of 2008. All the cases were amalgamated and the trial commenced. On 21.7.2008, learned trial court framed charges against the appellants Jagdish and co-accused Raghunath Singh, and Sahukar under Sections 302 read with Section 34 I.P.C. and a separate charge was framed against the appellant Jagdish under Section 25 of Arms Act. On 22.7.2008, the trial court framed charges against the appellant Manoj Kumar under Sections 302 read with Section 34 I.P.C. and a separate charge was framed against the appellant Manoj Kumar under Section 25 of Arms Act. The appellants and co-accused Raghunath Singh and Sahukar denied the charges and plead 'not guilty' and hence they were tried by the Court of Sessions.

11. During the trial, eight prosecution witnesses were examined to prove the prosecution case. PW-1 Mangal Singh, informant/father of deceased, PW-2 Lakhan Singh, elder brother of the deceased, PW-3 Rekha, age about 15 years/ younger sister of the deceased were the eye-witnesses of the incident. PW-4 S.I. Rakesh Kumar Awasthi, the then SHO, who investigated the case Crime No. 681 of 2007, proved various stages of the investigation including the documents connected therewith and also proved the material objects as Ex.-1 to Ex.-22, PW-5 HC Ramesh Chand, scribe of F.I.R. who proved the registration of the FIR, the Chick FIR and GD entry as G.D. Report No. 19, thereof, PW-6 S.I. Kunwar Singh, I.O. of Case Crime No. 708 of 2007, PW-7- Dr. Surendra Singh, who conducted the post-mortem, proved the post-mortem report and PW-8 S.I. Veeresh Kumar, I.O. of Case Crime No. 59 of 2008. The permissions for prosecution under Arms Act against the appellants were given by District Magistrate Mathura (Ex.Ka.-20, Ex.Ka.-26), and were filed before the committal court, and proved by PW-6 and PW-8.

12. The appellants and co-accused were examined by the trial court under Section 313 of Cr.PC. wherein, they denied the incriminating evidence put to them and stated that they have been falsely implicated on account of enmity. The appellants Jagdish, Manoj Kumar stated that Mangal Singh, informant wanted to encroach their plot in the garb of the murder of Kamal Singh, the murder took place at different place and time by other persons, a false report has been lodged against them for taking possession of their plot. The appellants, however, did not lead any oral or documentary evidence in support of their defence.

FINDINGS OF THE TRIAL COURT

13. The trial court on the basis of the evidence held that the testimony of PW-1 Mangal Singh, PW-2 Lakhan Singh, and PW-3 Rekha is cogent, credible, trustworthy, and wholly reliable with regard to the guilt of the appellants Jagdish and Manoj Kumar. The evidence of relative of the deceased cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased, it is a settled position of law that mere fact that the witnesses are related to each other itself is no ground to discard their evidence. Indeed, the evidence of a closely related/interested/inimical witness is required to be carefully scrutinised and appreciated with caution. It is an admitted fact that there exists an enmity between the appellants and the informant with regard to a plot, it cannot be said that the motive exists only against the informant.

14. The trial court also found that the FIR against the appellants and co-accused was lodged promptly i.e. within one hour and 5 minutes of the incident wherein the distance between the place of the incident and the police station is 16 Km, and the argument that the FIR had come into existence after the inquest proceedings had been completed, was unacceptable. The informant Mangal Singh lodged the FIR against the appellants and co-accused promptly; the complaint contained the signature of the informant at the bottom of the complaint i.e. back of the complaint. The credibility of the FIR is not affected merely on the ground that the informant had not signed on the first page of the complaint; scriber of the complaint (Ex.Ka.-1) Mahavir Singh had not been examined because there is no dispute with regard to the fact that the complaint was received by PW-5 HC Ramesh Chand and the copy of the FIR was issued to the informant immediately after registering the FIR. It is of no consequence, that the complaint has not contained his signature on the first page because the informant signed at the bottom of the complaint i.e. at the back of the first page.

15. The trial court further held that the special report (SR Report) of the present case was sent at 16:20 P.M. on 10.11.2007 by Constable Dhanesh, the delay (about 6 hours) in sending the SR Report had been duly explained by PW-5 HC Ramesh Chand. The inquest proceedings were commenced at 11:05 A.M. and the post-mortem of the dead body was completed at 3:40 P.M. on the same day, and it was suggested to PW-7 Dr. Surendra Singh that no other police papers except the inquest report, were received at the time of post-mortem, and seizure of incriminating articles was effected, only on the basis of such delay in sending the SR Report, the credibility of the FIR is not affected; overwriting in the Chick FIR (Ex.Ka.-16) at distance between the place of the incident and the Police Station, digit '6' of '16 Km'; at the time of lodging of the FIR digit '0' of '10:35 A.M.' and the time of the incident, letter 'A' of '9:30 A.M' are only a clerical mistake because there is no overwriting in G.D. entry of Chick FIR. G.D. Report No. 19 with regard to the other facts. There is no dispute with regard to receiving the copy of FIR by the informant after its registration, on the basis of such clerical mistake, it can not be said that the FIR of the present case was lodged ante timed.

16. The trial court further held that the presence of eye-witnesses PW-1 Mangal Singh and PW-2 Lakhan Singh at the tubewell of Prem Singh, at the time of the incident, is natural because they went to the tubewell of Prem Singh for taking the water for irrigation of their field, wherein Prem Singh was present at that time and after hearing of the gunshots, PW-1 and PW-2 rushed to the spot. The presence of PW-3 Rekha in her plot, where she was dumping cow dung at the time of the occurrence, which is situated near the place of the incident, is natural after seeing the incident she also rushed to the spot. The eye-witnesses PW-1, PW-2, and PW-3 has seen the incident and after committing the offence, the appellants and co-accused fled away from the place of the occurrence.

17. The trial court further held that the motive is not of much importance where positive evidence of eye-witnesses against the accused persons is clear in relation to the offence; mere absence of motive, even if assumed, will not per se entitle the accused persons to acquittal, if otherwise, the commission of the crime is proved by cogent and reliable evidence. The medical evidence supported the ocular version inasmuch as the injuries found on the dead body of Kamal Singh revealed that multiple firearm injuries were received from the front side.

18. The trial court further observed that merely non-examination of independent witness Raghuvir Singh and Moolchand, the prosecution evidence can not be discarded on this ground alone. Moreover, it is a settled position of law that non-examination of a material witness is not a mathematical formula for discarding the weight of the testimony available on record.

19. The trial court further observed that the investigating officer has recorded the statement of PW-3 Rekha under Section 161 of Cr. PC. after 25 days of the incident, it is noteworthy that Rekha (PW-3) is named as an eye-witness in the FIR and it was not disputed that PW-3 Rekha had not seen the incident, if the I.O. committed any delay in recording the statement, it has no relevance. It is an admitted fact that the deceased Kamal Singh had not received any injury of lathies and eye-witnesses clearly stated that co-accused Raghunath and Sahukar had not caused any injury to the deceased with lathies. The eye-witnesses PW-1, PW-2, and PW-3 reached the place of the incident after hearing the gunshots and they saw the incident from distance. It means that they had not heard the exhortation, therefore, the prosecution failed to prove the role of exhortation, against Raghunath Singh and Sahukar. There is no inconsistency between the ocular and the medical testimony with regard to the direction of the gunshot.

20. After analysing the evidence, the learned trial court concluded that the prosecution successfully proved the charges against the appellants Jagdish and Manoj Kumar under Section 302 read with Section 34 of I.P.C., beyond reasonable doubt, and thereby convicted and sentenced the appellants as above. The trial court acquitted co-accused Raghunath and Sahukar under Section 302 read with Section 34 of I.P.C. and the appellants under Section 25 of Arms Act.

21. Being aggrieved by the trial court's judgment and order, the appellants have preferred these appeals.

SUBMISSION BEFORE THIS COURT

22. We have heard Sri O. P. Singh, learned Senior counsel assisted by Sri Rajiv Singh, Sri Indrajit Singh for the appellants; Sri Ratan Singh learned A.G.A., for the State and have perused the record.

23. Mr. O. P. Singh, learned Senior counsel for the appellants has raised several arguments before us during the course of the hearing for assailing the judgment of the trial court and vehemently urged that PW-1 Mangal Singh, PW-2 Lakhan Singh, and PW-3 Rekha are chance witnesses. The presence of PW-1, and PW-2, at the tubewell of Prem Singh, has not been satisfactorily explained and proved. The presence of PW-3 Rekha on her plot at the time of the incident has also not been satisfactorily explained and proved. The presence of the eye-witnesses is highly doubtful and unbelievable because they kept mum till the accused persons fled away from the spot and there are material inconsistencies in their testimony about their presence thereof, which leads cast serious doubt in the prosecution version. The prosecution witnesses are relative /inimical witnesses and the independent witnesses Raghuvir, Moolchand have not been examined and have been purposely withheld by the prosecution. The medical evidence is in conflict with the ocular testimony of alleged eye-witnesses and it materially affects the reliability of the witnesses.

24. Learned counsel for the appellants further submitted that there are overwriting in the Chick FIR, by which the time of registering of the FIR, the time of the incident, and the distance between the place of the incident and the police station were corrected, which suggested that the FIR was lodged ante-timed and a false prosecution story was developed. The trial court did not appreciate and consider the entire evidence on record in the correct legal perspective. The prosecution has failed to prove the case against the appellants beyond reasonable doubt inasmuch as it has failed to prove that the incident occurred in the manner alleged, therefore, impugned judgment and order are liable to be set aside.

25. Per contra; the learned AGA has supported the judgment of the trial court and has refuted the arguments made on behalf of the appellants and submitted that this is a case of broad daylight murder with direct evidence to prove the guilt. The incident took place on 10.11.2007 at 9:30 A.M. in the field of Prem Singh and PW-1 Mangal Singh and PW-2 Lakhan Singh saw the incident from the tubewell of Prem Singh and PW-3 Rekha saw the incident from her plot and they reached the place of the incident immediately after seeing the occurrence. The FIR was lodged by the informant against the appellants and the co-accused on the same day at 10:35 A.M. promptly i.e. within 1 hour and 5 minutes of the incident. The ocular testimony of eye-witnesses is corroborated by the medical evidence. The doctor (PW-7), who conducted the post-mortem examination had clearly suggested that death might have been taken place within 8 hours, which suggests that the incident has occurred at the time put by the prosecution. There is a sufficient reason put forth with regard to the delay caused in sending the SR Report; there is no inordinate delay in recording the statement of PW-3 Rekha under Section 161 of Cr. PC.

26. Learned A.G.A. further submitted that the prosecution has successfully proved the prosecution case. The trial court has properly appreciated the evidence and rightly held the appellants guilty. The findings recorded by the trial court are based on proper appreciation of the evidence. The judgment and order of the trial court are liable to be affirmed. Hence, the appeals are liable to be dismissed.

ANALYSIS OF THE PROSECUTION EVIDENCE

27. Before we proceed to test and analyse the respective submissions, it would be apposite to notice the arguments on behalf of the appellants in detail. The appellants' arguments are: Firstly; the FIR of the present case was lodged ante-timed which casts a complete shadow of doubt on the prosecution case for the reasons below:

(a) There are overwriting in serial no. 5, 6, and 9 of the Chick FIR, by which corrected the distance between the place of the incident and the police station on digit '6' of digit '16 Km', the registering time of the FIR on the digit '0' of time '10:35 A.M.' and the time of the incident on the letter 'A' after '9:30 A.M.'. Initially, the distance between the place of the incident and the police station was '12 Km', the registering time of the FIR was 11:35 A.M., and the time of the incident was 9:30 P.M. were written.

(b) The special report (SR Report) has been sent after an unexplained delay of about 6 hours at 16:20 hours on 10.11.2007.

(c) There is an inconsistency between the testimony of PW-1 Mangal Singh on one hand and PW-4 S.I. Rakesh Kumar Awasthi on the other hand with regard to the scribe of the complaint (Ex.Ka.-1). According to PW-1 Mangal Singh, Mahavir Singh is a writer of the complaint; whereas, PW-4 stated that Mahavir did not state that he had written the complaint.

(d) PW-1 Mangal Singh has given a self-contradictory statement, with regard to the writer of the complaint (Ex.Ka.-1); he stated in his examination-in-chief that the report of the incident was written by Mahavir Singh; whereas he stated in his cross-examination that on the day of the incident he had not met with Mahavir Singh.

(e) The scribe of the complaint, Mahavir Singh had not been examined by the prosecution to prove the complaint (Ex.Ka.-1).

(f) The informant had not lodged the FIR, because the informant had not signed on the first page of the complaint (Ex.Ka.-1).

Secondly; PW-1 Mangal Singh, PW-2 Lakhan Singh, and PW-3 Rekha are chance witnesses, their presence is highly doubtful, and as alleged that they saw the incident from distance. The presence of PW-1, and PW-2, at the tubewell of Prem Singh at the time of the incident, has not been satisfactorily explained and proved. The prosecution also failed to explain and prove the presence of PW-3 Rekha near the field of Prem Singh at the time of the incident, therefore, the testimony of PW-1, PW-2, and PW-3 does not appear reliable and does not inspire confidence in the prosecution case, which, seriously affects the credibility of PW-1, PW-2, and PW-3. Which emerges from the following circumstances:

(a) Prem Singh has not been examined by the prosecution to prove the presence of PW-1 and PW-2 at the tubewell at the time of the incident.

(b) PW-1 and PW-2 saw the incident from a distance of 150 steps and saw the appellants and co-accused with lethal weapons before the incident but they kept mum till the accused persons did not flee away from the spot after committing the offence.

(c) PW-3 saw the incident from the plot and saw the accused persons with lethal weapons before the incident but she also kept mum till the accused persons have not been fled away from the spot after committing the offence.

(d) PW-3 Rekha has given a self-contradictory statement with regard to the place of her presence. PW-3 Rekha stated in her examination-in-chief that she was coming from the field after dumping the cow dung at that time and rushed to the spot; whereas PW-3 Rekha stated in cross-examination that she was dumping cow dung in her plot located near the field of Prem Singh.

(e) PW-1, PW-2, and PW-3 being eye-witnesses of the incident neither made any hue and cry before the incident nor they attempted to save the deceased.

(f) There is no satisfactory explanation put forth with regard to the delay of 25 days after the incident in recording the statement of PW-3 Rekha under section 161 of Cr. PC.

(g) PW-1 Mangal Singh has given a self contradictory statement about the direction of the gunshot, firstly he stated that Raghunath Singh and Sahukar surrounded the deceased from the front side, Jagdish and Manoj fired from his backside; further, he stated that Raghunath Singh and Sahukar stopped the deceased from the front side, as soon as he turned back, Jagdish and Manoj fired upon him.

(h) There is a material inconsistency between the ocular evidence and the medical evidence about the manner of the direction of gunshot, PW-1 Mangal Singh stated that Raghunath Singh and Sahukar stopped the deceased from the front side, as soon as he turned back, Jagdish and Manoj fired upon him; whereas according to PW-7 Dr. Surendra Singh, all firearm injuries caused to the deceased could not be caused from the front side.

(i) Role of exhortation attributed to co-accused Raghunath Singh and Sahukar had not been proved and the prosecution failed to prove the role of exhortation against the co-accused Raghunath Singh and Sahukar.

(j) There is no recovery of empty cartridges from the place of occurrence, even though all the eyewitnesses have stated that three gunshots were fired and they reached immediately at the place of the incident.

Thirdly; The eye-witnesses are related/inimical witnesses their testimony was not corroborated by any independent witnesses, though Raghuvir Singh and Moolchand are independent eye-witnesses as alleged in the FIR, they have not been examined. The other independent eyewitnesses Prem Singh, Tej Singh, Lekhraj, Padam Singh, and Harbhajan, as stated by PW-1 Mangal Singh had also not been questioned by the I.O.

Fourthly; The motive to commit the murder of Kamal Singh assigned to the appellants has not been proved by the prosecution.

28. Before we proceed to dwell upon the merit of the contentions raised before us, it will be apposite to have a close scrutiny of the entire ocular evidence, which is as follows:

29. PW-1 Mangal Singh stated in his examination-in-chief that the incident took place at 9:30 A.M. on 10.11.2007 when his son Kamal Singh was returning home after defecation, at the same time Manoj and Jagdish, who had unlicensed guns (Paunia) and Raghunath and Sahukar having lathies in their hands, surrounded Kamal Singh in the field of Prem Singh. Raghunath and Sahukar shouted that his father poses himself to be a great litigant, kill him, and don't let him escape. Manoj and Jagdish shot fire at Kamal Singh from their unlicenced guns (Paunia). Hearing the sound of the gunshot, he and his eldest son Lakhan, who were standing on Prem Singh's tubewell reached the spot. On hearing the noise, Raghuvir, Moolchand, and his daughter Rekha reached the spot. On seeing the people coming, the accused persons fled away towards their house. Kamal Singh ran towards his house after being shot and fell down after walking 10 steps and died on the spot. On 2.7.2007, Jagdish, Sahukar, Raghunath, and Vinod had beaten Kamal Singh and Lakhan Singh, in this regard a criminal case is pending in the court. He has a plot of 200 yards in the village which is in his possession, he had dug the foundation in the plot 10-12 days before 2.7.2007, but the accused persons restrained him from raising construction over the plot. He had filed a Civil Suit against Jagdish and others, in which a Court Ameen inspected the spot. Kamal Singh used to do Pairavi of the case, due to this enmity Jagdish, Manoj, Raghunath, and Sahukar murdered his son. The complaint (Tahrir) of the incident was written by Mahavir Singh.

30. PW-1 Mangal Singh in his cross-examination stated that he along with Lakhan went to ask Prem Singh to get water from the tubewell of Prem Singh for irrigation of his field, which is located near his field, at that time Prem Singh was present on his tubewell. The incident took place when they were returning from the tubewell after talking to Prem Singh. He heard the sound of 3 gunshots. Prem Singh's tubewell is situated on the eastern side about 150 steps away from the place of the occurrence. Kamal Singh was shot from a distance of 5-6 steps. Sahukar and Raghunath Singh surrounded Kamal Singh from the front side, Jagdish and Manoj were fired from his backside. He further stated that Raghunath and Sahukar stopped Kamal Singh from the front side, as soon as he turned back, Jagdish and Manoj fired at him. Raghunath and Sahukar did not cause any injury to Kamal Singh with lathies. Kamal Singh had run towards Gutia's house after being shot, which is about 20 steps away from the place where he had fallen. He had not found any Tiklee, empty cartridge, and pallets on the spot. The dead body was lying in the field of Prem Singh. Moolchand and Lakhan went to the police station with him to lodge the report. He did not meet Mahavir on that day. Moolchand and Raghuvir did not see the incident, so their names were not written in the complaint as eye-witnesses. Though, they are witnesses of the inquest report. Prem Singh, Tej Singh, Lekhraj, Padam Singh, and Harbhajan also witnessed the incident. He, while writing the complaint, did not tell the names of the above eyewitnesses to the scriber.

31. PW-1 Mangal Singh in his cross-examination further stated that he left home at 9 o'clock to go to the tubewell of Prem Singh and arrived within 7-8 minutes. He returned at 9:30 A.M., till then the incident had taken place. Prem Singh's field is adjacent to the outskirts of the village but the field is about 5 Khet far from his house. The distance between the house of accused and the place of the incident is one Khet, there is no other Khet in the middle. Houses of Mehilal, Ranvir, and Gutia are adjacent to the field of Prem Singh. The house of Gutia is situated between his house and the place of the incident. When he dug up the foundation of the plot, the accused persons restrained him then he filed a civil suit against Jagdish and others. Jagdish appeared in the civil suit and he filed his written statement. Kamal Singh used to do Pairavi of the cases with him, and used to take him to court, this fact was neither written in the complaint nor told to the police. On 2.7.2007, Jagdish, Sahukar, Raghunath, and Vinod had beaten Kamal and Lakhan, this fact had not been written in his complaint but he told this fact to the police. He had told about the enmity, it is not known to him whether it was written in the report or not because he was upset at that time.

32. Durng the cross-examination, certain suggestions were put to the witness, which have been specifically denied by P.W.-1 and he stated that it is wrong to say that our unlicensed pistol was fired during our scrumble, which hit Kamal Singh. It is wrong to say that the incident had not taken place in the field of Prem Singh, and it had taken place at our house. It is wrong to say that he wanted to encroach unpartitioned land unauthorisedly and lodged a false report against them. It is also wrong to say that the complaint had not been written on his instructions and he had not signed at the time which is shown in the report.

33. It is worthy to note that PW-1 consistently stated that he along with Lakhan went to ask Prem Singh to get water from the tubewell of Prem Singh for irrigation of his field at the time of the incident and they saw the incident from the tubewell. At that time Prem Singh was present at his tubewell. The incident took place in the field of Prem Singh. Raghunath and Sahukar stopped Kamal Singh from the front side, as soon as he turned back, Jagdish and Manoj fired upon him. Kamal Singh was shot from a distance of 5-6 steps. PW-1 and PW-2 Lakhan reached the spot immediately, and after hearing the noise PW-3 Rekha reached the place of the occurrence, and he along with his son Lakhan, and Moolchand went to the police station to lodge the report and the inquest proceedings were commenced at 11.05 A.M. at the spot.

34. After considering testimony and having a close scrutiny of the testimony of PW-1, it is noticeable that the above facts have not been controverted on behalf of the appellants. The presence of PW-1 Mangal Singh along with PW-2 Lakhan at the tubewell of Prem Singh and conduct of PW-1 just before or after the incident have not been disputed. There is no cross-examination directed against his testimony to discredit his evidence on the above facts. The evidence of PW-1 was not shaken in the cross-examination and nothing infirm has been elicited to cast doubt on his veracity.

35. Apart from this, it is relevant to note that there is no dispute with regard to the place and time of the incident; his presence at the tubewell of Prem Singh at the time of the incident with PW-2 Lakhan Singh; purpose of his presence along with PW-2 Lakhan Singh at the tubewell of Prem Singh; at the time of the incident the deceased was returning home after defecation; the role attributed to the appellants; happening of the incident dated 2.7.2007; his behaviour at the time of the incident and after the incident; arrival of PW-3 Rekha at the spot after hearing the noise; lodging the FIR by PW-1 Mangal Singh at 10:35 A.M. on 10.11.2007. It is significant that, no suggestions have been put to the witness regarding his presence along with PW-2 Lakhan Singh at the tubewell of Prem Singh at material time; time and place of the incident; their arrival on the place of the incident immediately after the incident; arrival of PW-3 Rekha at the spot after hearing the noise; lodging the FIR by this witness at 10:35 A.M. on 10.11.2007 and about the incident dated 2.7.2007. In addition to above, without disputing the time and place of the occurrence, a suggestion was put to the witness that our unlicenced pistol was fired during scrumble at our house, which hit Kamal Singh, which has been specifically denied by PW-1 Mangal Singh.

36. After considering the evidence of PW-1 Mangal Singh, the inferences may safely be drawn which are: (a) the incident took place in the outskirts of the village which is adjacent to another field of Prem Singh; (b) the place of the incident is 150 steps away from the tubewell of Prem Singh; (c) there is no obstruction because of the visibility between the place of the incident and the tubewell of Prem Singh; (d) at the time of the incident the deceased Kamal Singh was returning home after defecation; (e) the incident took place in the open field and there was no crop standing in the adjacent fields; (f) the field of PW-1 is situated near the tubewell of Prem Singh; (g) after receiving the gunshot, Kamal Singh ran towards his house but after 10 steps he fell and died on the spot; (h) PW-1 usually visited his field which is located near the tubewell of Prem Singh; (i) PW-1 was not presented coincidentally or by chance at the tubewell of Prem Singh at the time of the incident.

37. PW-2 Lakhan Singh stated in his examination-in-chief that the incident took place at 9:30 A.M. on 10.11.2007 when his brother Kamal Singh was returning home after defecation. When he reached the field of Prem Singh, at the same time Manoj, Jagdish, who had unlicensed guns (Paunia) and Raghunath, Sahukar having lathies in their hands surrounded Kamal Singh in the field of Prem Singh. Raghunath and Sahukar shouted that his father poses himself to be a great litigant, kill him and don't let him escape. Manoj and Jagdish shot at Kamal Singh from their unlicenced guns (Paunia). Kamal Singh ran towards his house after receiving gunshot injuries and fell down at the place wherefrom the shot was fired and after running 10-15 steps, he died on the spot. Hearing the gunshots, he and his father, who were standing at the tubewell of Prem Singh, reached the spot. His sister Rekha, who was coming home after dumping cow dung from the field also saw the incident and reached the spot. Raghuvir Singh and Moolchand also witnessed the incident. After the incident, the accused persons fled away towards their house. His father has a plot of 200 yards in the village which is in our possession, there was enmity with the accused persons regarding the plot. The report was lodged by his father.

38. PW-2 Lakhan Singh stated in his cross-examination that on the day of the incident, he went to the tubewell of Prem Singh along with his father to ask him to take water for irrigation of his field. There are other persons' tubewells nearby his field but the tubewell of Prem Singh is located nearest to his field. Fields of Kishori, Govind Singh, Hari Singh are also situated adjacent to his field. He did not see the tubewells of other persons. Indeed, the field of the tubewell of Prem Singh is far away as compared to the field of Kishori. He did not tell that how these persons irrigate their fields. The water of the tubewell of Prem Singh was not saline. He and his father had witnessed the incident from the tubewell of Prem Singh, where from the place of the incident would be 40-50 steps away. The place of the incident would be about 2 Khet away from the tubewell. The incident took place within 2 minutes after reaching the tubewell. The accused persons had surrounded his brother from all sides. Further, he stated that the accused persons did not surround the deceased from all sides. He had wrongly stated earlier that the accused persons surrounded his brother from all sides. Raghunath and Sahukar did not cause any injury to his brother with lathies. He had heard 3 gunshots. Kamal Singh ran 10-15 steps from the place of the incident and then fell down. When he saw that the accused persons had gone away, he reached the spot after 4-5 minutes, at that time Kamal Singh did not say anything and he died in front of him. He saw the blood in both places, some blood at the place of the incident and some blood on the spot where he had fallen. The police had taken blood from both the places. If the police had not shown the place in the site plan where the blood is taken, he cannot tell its reason. He cannot tell the reason, why the murder took place on the day of the incident.

39. PW-2 Lakhan Singh further stated in his cross-examination that the accused persons had come from the same direction in which his brother had gone after the incident. When we reached on the spot, at that time Mehilal, Ranvir, and Gutia also reached there, who told us that the accused persons had shot fire at Kamal Singh, we had also seen the incident. Prem Singh also reached on the spot. He can not tell whether the name of Mehilal, Ranvir, and Gutia had been written as eye-witnesses in the report or not. It is correct to say that the houses of Mehilal, Ranvir, and Gutia are situated between the place of the incident and his house, and the houses of Mehilal, Ranvir, and Gutia are situated adjacent to the field of Prem Singh. The Houses of the accused persons and his house are located nearby. The place of the incident would be about 250 steps away from the house of the accused persons.

40. PW-2 Lakhan Singh further stated in his cross-examination that the deceased went for defecation at 9:15 A.M on the day of the incident and his time of going for defecation was not fixed. He used to go for defecation at half-past eight, sometimes at quarter to nine or at nine O'clock. It is correct to say that when he and his father returned from defecation, his brother went for defecation. Usually, he and his father, and his brother used to go to defecation in his field, his field would be about one hundred steps away from the place of the incident and the path of his field goes through the field of Prem Singh, where the incident took place. The land dispute with the accused persons was going from one year. The dispute was going on from 4-5 months before 2.7.2007. Kamal Singh had stopped studying 2-3 years before the date of the incident. The police station would be 10-11 Km away from the place of the incident.

41. During his cross-examination, certain suggestions were put to this witness, which have been specifically denied by P.W.-2 and he stated that it is wrong to say that the water of the tubewell of Prem Singh was saline and Prem Singh used to irrigate his field with the tubewells of Kishori, Govind Singh, and Hari Singh. It is wrong to say that his brother had not been killed by the accused persons. It is wrong to say that the incident had not taken place in the field of Prem Singh. It is wrong to say that the incident took place at some other place and was committed by other persons. It is wrong to say that a false report has been lodged to grab the land of the accused persons.

42. It is noteworthy that the presence of PW-2 at the tubewell challenged on the ground that at the time of the incident, the water of tubewell of Prem Singh was saline and there were other tubewells of other persons, why PW-2 asked to get water from the tubewell of Prem Singh and why he and his father both had gone to the tubewell, one person could have asked. Prem Singh used to irrigate his field from the tubewells of Kishori, Govind Singh, and Hari Singh.

43. Upon considering the testimony of PW-2 Lakhan Singh, reveals that there is no dispute with regard to the location of the tubewell of Prem Singh; his presence at the tubewell of Prem Singh at the time of the incident with PW-1 Mangal Singh; at the time of the incident the deceased was returning home after defecation; the role attributed to the appellants; his behaviour at the time of the incident and after the incident; arrival of PW-3 Rekha at the spot after hearing the noise; lodging the FIR by PW-1 Mangal Singh at 10:35 A.M. on 10.11.2007; about the incident dated 2.7.2007. It is relevant to note that three suggestions have been asked first time to PW-2 Lakhan Singh as: first, that the water of the tubewell of Prem Singh was saline; second, the incident took place at some other place and committed by other persons; third, there is other tubewells of other farmers and Prem Singh himself used to irrigate his field with other tubewells because these suggestions were not made to PW-1 Mangal Singh.

44. It is worthy to note that, no suggestions have been put to the witness regarding his presence along with PW-1 Mangal Singh at the tubewell of Prem Singh at material time; time and place of the incident; their arrival on the place of the incident immediately after the incident from the tubewell of Prem Singh; about the incident dated 2.7.2007; arrival of PW-3 Rekha at the spot after hearing the noise; lodging the FIR by PW-1 at 10:35 A.M. on 10.11.2007.

45. PW-2 Lakhan Singh consistently stated in his testimony that PW-2 went to the tubewell of Prem Singh along with his father PW-1, to ask him to take water for irrigation of his fields and his field is located near to the tubewell of Prem Singh. They had witnessed the incident from the tubewell of Prem Singh. The incident took place after 2 minutes of reaching the tubewell. The incident took place at 9:30 A.M. on 10.11.2007, when his brother Kamal Singh was returning home after defecation. Jagdish and Manoj shot fire his brother from the front site and his father lodged the report.

46. After considering the testimony of PW-2 and having close scrutiny, it is noticeable that the above facts have not been controverted on behalf of the appellants. The presence of PW-2 Lakhan along with PW-1 Mangal Singh at the tubewell of Prem Singh at the time of the incident and conduct of PW-2 just before or after the incident have not been disputed. There is no cross-examination directed against his testimony to discredit his evidence on the above facts. The evidence of PW-2 was not shaken in the cross-examination and nothing infirm has been elicited to cast doubt on his veracity.

47. After considering the testimony of PW-2, the inferences may safely be drawn that: (i) the path of his field goes through the field of Prem Singh wherein the incident took place; (ii) there is no obstruction in view of the visibility between the place of the incident and the tubewell of Prem Singh; (iii) at the time of the incident, the deceased Kamal Singh was returning home after defecation; (iv) the incident took place in the open field and there was no crop standing in the adjacent fields; (v) PW-2 usually visited his field which is located near the tubewell of Prem Singh; (vi) PW-2 was not present coincidentally or by chance at the tubewell of Prem Singh at the time of the incident.

48. PW-3 Rekha, younger sister of the deceased in her testimony deposed that the incident took place a year and two months ago when her brother was returning home through the field of Prem Singh after defecation at 9:30 A.M. At that time she was dumping the cow dung in the field near the field of Prem Singh. When her brother reached the field of Prem Singh, at the same time, Raghunath, Sahukar having lathis, Jagdish and Manoj having unlicensed guns (Puniya) and surrounded her brother. Raghunath exhorted that "Isaka Pita Bahut Mukdame Karta Hai Is Saale Ko Mar Do Bachne N Paye" (his father litigates a lot, kill him and he does not escape). Then Jagdish and Manoj shot her brother Kamal with their unlicensed guns (Puniya), which hit her brother. One fire was hit on his arm and another fire hit on his stomach. Her brother ran some distance after being shot, then fell down and died on the spot. Her father and brother Lakhan, who were taking water from the tubewell of Prem Singh, came to the place of occurrence and they picked up the body of Kamal Singh and kept it on a cot (wooden cot). Apart from her father and brother Lakhan, Moolchand, Raghuvir and Gutia had also witnessed the incident. She also witnessed the incident. Accused persons wanted to dispossess her father from his plot, due to this enmity her brother was killed and they fled away towards Nagla Bohre after threatening.

49. PW-3 Rekha stated in her cross-examination that on the day of the incident, she was dumping cow dung in her plot located near the field of Prem Singh. She heard 3 gunshots at that time she was dumping cow dung in the plot. When she reached near her brother, she came to know that her brother received gunshots, at that time he was breathing. After being shot, his brother went 20-25 steps. It is true that no injury was caused to Kamal Singh by lathies. The tubewell of Prem Singh would be 40-50 steps away from the spot. The place of incident is not visible from the house of the accused. The accused persons had come from their house and ran towards their house. The accused persons had gone back from the path they had come from. The other residents, who resided near Gutia's house had not seen the incident, because these people had come on the spot after the incident. She does not know after how long they came. She had not seen Prem Singh at the place of the incident.

50. PW-3 Rekha stated further in her cross-examination that the field of Prem Singh would be 50 steps away from her house. The tubewell of Prem Singh would be 60-70 steps away from her house. Her father's field is 15 steps away from the field of Prem Singh. Field of accused persons situated between the field of her father and the field of Prem Singh. She does not know how many fields are there because she is illiterate. She does not know whose fields are located on the way between her home and her field. She further stated that the fields of the accused and Prem Singh are located. The length and breadth of the plot in question are not known but it's area is 200 yards. At the time of the incident, she does not know how many buffaloes or cows she had, she does not know that she had one cow at that time. At the time of the incident, she had two cows. But she does not know that at that time we had 5-6 buffaloes and 8-10 cows or not. She used to prepare cow dung cake in the plot. But on the day of the incident, she had gone to dump cow dung in the plot situated adjacent to the field of Prem Singh.

51. PW-3 Rekha stated further in her cross-examination that she does not know that when this plot was purchased and how big it is. She does not know the length and breadth of this plot. She does not know what is all around this plot, she further stated that the houses of Moolchand, Lakhan, Gutia, and Mishrilal are situated towards the field of Prem Singh. She does not know that she celebrates Gowardhan Puja or not. She does not know as to whether cow dung is used in making the statue of Lord Gowardhan or not. She had gone to dump one Tasla cow dung from her home at 9:00 A.M. Her brother Kamal went for defecation 1-2 minutes before her. She does not know whether at that time her father and brother Lakhan were at home or not.

52. PW-3 Rekha stated further in her cross-examination that the police had come to the spot at around 11 o'clock and took away the dead body. Who had placed the dead body on the cot, she does not know because she was crying at that time. The police did not carry the corpse along with the cot. She does not know whether the police vehicle had reached the field or not. She had told to the police that her plot is located near the field of Prem Singh and she has also told about the dumping of cow dung in that plot, if it is not written in her statement then she can not tell the reason. The accused persons wanted to take possession of her plot and for this reason, they had enmity. She told this fact to the police, if it is not written this fact in her statement, then she cannot tell any reason.

53. PW-3 Rekha further stated in her cross-examination that at that time her field was empty, Pareh (irrigation of field before seeding) was going on. She does not know when Pareh started. The water of the tubewell of Prem Singh was sweet at the time of the incident. Since 2-3 months after the incident, she was residing in Delhi with her maternal grandfather and grandmother. The accused persons wanted to kill her. Since the accused paid 3 lakh rupees to kill her, so she had gone to Delhi for saving her life. This fact was revealed 3 months after the incident. Her statement was recorded 25 days after the incident. She does not know how many times the police had come to the village during this period. We do not go for defecation in our field because our field is far away, so we go to the field of Prem Singh for defecation. Raghunath is her real uncle. It is true that the incident took place on the day of Goverdhan Puja.

54. During her cross-examination, certain suggestion were put to the witness, which have been specifically denied by P.W.-3 and she stated that it is wrong to say that she has been residing in Delhi even before the incident and is telling false that she was dumping cow dung in the plot located near the field of Prem Singh. It is wrong to say that her brother was not murdered by the accused persons. It is wrong to say that Raghunath Singh was not present at the time of the incident.

55. The presence of PW-3 Rekha near the place of the occurrence at the time of the incident has been assailed by the appellants as; firstly; the incident took place on Gowerdhan Puja, on that day the statue of Lord Gowerdhan is made by cow dung and therefore, no question arises for dumping the cow dung on that day and she is unaware about the numbers of her cattle; Secondly; she is unaware the surroundings of the plot, where it is alleged that at the time of the incident, she was dumping the cow dung at 9:30 A.M.; the deceased went to defacation 1 or 2 minutes from the home before her at 9:00 A.M., therefore she reached the plot after 30 minutes, which is improbable because her plot is situated nearest to her house; thirdly; she stated in her statement-in-chief that her father and brother, who were taking water from the tubewell of Prem Singh, came to the place of occurrence and they picked up the body of the deceased and placed it on a cot; whereas she denied in her cross-examination that she was unaware as to who placed the body on cot; fourthly; she stated that at the time of the incident her father and bfrother Lakhan were taking the water from the tubewell; whereas according to the prosecution case, they went to the tubewell to ask for taking the water for irrigation; fifthly; she stated in her cross-examination that at the time of the incident, she was dumping the cow dung in her plot near the field of Prem Singh; whereas in examinatiin-in-chief, she stated that at that time she was coming from her field after dumping the cow dung.

56. Upon a close scrutiny of the evidence of PW-3 Rekha, reveals that she was dumping cow dung in her plot at the time of the incident which is situated near to the field of Prem Singh. The houses of Moolchand, Lakhan, Gutia, and Mishrilal are situated adjacent to her plot, towards the field of Prem Singh. It is noticeable that the field of PW-3 is situated near the tubewell of Prem Singh. The incident took place in the field of Prem Singh which is located adjacent to the outskirts of the village. There is no field of PW-3 located adjacent to the place of the incident. The plot where she is claimed herself to be present at the time of the incident and the field of her father are different places. There is inconsistency in her testimony with regard to her presence at the time of incident. She stated in her examination-in-chief that she was dumpting the cow dung in the field located near the field of Prem Singh, whereas, she stated in her cross-examination that her plot is situated near the field of Prem Singh and at that material time she was dumping cow dung in that plot if it is not written in her statement she can not tell the reason.

57. It is relevant to note that there is no dispute with regard to arrival of her father (PW-1 Manal Singh) and her brother (PW-2 Lakhan Singh) at the place of the incident after the occurrence from the tubewell of Prem Singh and her arrival at the spot after hearing the noise. It is significant that, no suggestions have been put to the witness regarding the above fact.

58. PW-4 S.I. Rakesh Kumar Awasthi (I.O.) stated in his examination-in-chief that he received the investigation of Case Crime No. 681 of 2007 on 10.11.2007. On 10.11.2007, he recorded the statement of the eye-witnesses, informant Mangal Singh, Lakhan Singh, Raghuvir Singh, Moolchand and he prepared the site plan after inspecting the place of the incident on pointing out of the informant. He took the blood-stained and plain earth from the place of occurrence in the presence of Padam Singh and Jaggnath and prepared a seizure memo. The proceedings of the inquest were conducted by S.I. Netrapal Sharma on his direction on 10.11.2007 at the place of the incident in presence of Panchan (witnesses), and prepared the inquest report and other requisite police papers for getting the post-mortem and dead body was sent for post-mortem. He proved the inquest report and police papers. On 13.11.2007, he arrested the accused Raghunath Singh and Sahukar and recorded their statements then sent them to judicial custody. Accused Jagdish was arrested on 18.11.2007, and an unlicenced gun (Paunia), 4 live and 1 empty cartridge were recovered on his pointing out in presence of witnesses, Padam Singh, Jaggnath Singh, and a seizure memo was prepared by S.I. Netrapal Sharma under his direction. He also prepared a site plan of the place of the recovery. He proved the seizure memo of the unlicenced gun as Ex.Ka.-9 and lodged an FIR of Case Crime No. 708 of 2007 under Section 25 of Arms Act against the appellant Jagdish.

59. PW-4 S.I. Rakesh Kumar Awasthi (I.O.) further stated in his examination-in-chief that he recorded the statements of eye-witnesses Rekha and Digamber on 5.12.2007 and after completing the investigation, he submitted the charge sheet against the appellant Jagdish and co-accused Raghunath and Sahukar. The proceedings under Section 82 and 83 of Cr. PC. against the appellant Manoj Kumar were completed on 19.1.2008. The appellant Manoj Kumar surrendered before the court on 28.1.2008 and on 31.1.2008, his statement was recorded in Jail after receiving the permission of the court. He received some documents regarding the dispute of plot from the eye-witness Lakhan Singh and his further statement was recorded. After receiving the police custody remand (PCR) of the appellant Manoj Kumar from the court on 3.2.2008, he recovered an unlicenced gun .12 bore (Paunia), two live and one empty cartridge as pointed out by the appellant Manoj Kumar in presence of the witnesses and thus, a seizure memo was prepared. After completing the investigation, he submitted a charge sheet against the appellant Manoj Kumar and sent all recovered articles for forensic examination to the Forensic Science Laboratory, Agra. He proved all the articles which were recovered during the investigation as material Ex.-1 to material Ex.-22 before the trial court.

60. PW-4 S.I. Rakesh Kumar Awasthi (I.O.) stated in his cross-examination that statement of eyewitness Rekha was recorded on 5.12.2007. He could not give any reason as to why he recorded the statement of Rekha so late. The statement of Tahrir writer Mahavir Singh was recorded on 5.12.2007, but Mahavir Singh did not state in his statement that he had written the Tahrir, Mahavir Singh gave his statement as a witness of the inquest report. In the Chick FIR, the distance from the police station is written as '16 Km', in which there is an overwriting on digit '6' of digit '16 Km'. After '9:30 A.M.' in the Chick FIR, there is no overwriting at letter 'A', rather it is the darkness of the pen. Similarly, it is no overwriting on the letter '0' of time '10:35 A.M.', it is the darkness of the pen.

61. PW-4 S.I. Rakesh Kumar Awasthi (I.O.) further stated in his cross-examination that in the site plan, the firing was shown from the house of the accused persons, which was hit at 'A' place. This distance between the two places must be about 60 steps, but he did not mention this distance in the site plan as well as the place where the blood was found. The place wherefrom Rekha saw the incident is also not shown in the site plan. It is correct to say that the informant and the witnesses of the FIR are not the witnesses of the inquest report. The informant had told in his statement that there was enmity with regard to the plot but he had not given any document in this regard. Lakhan told on 31.1.2008 that the dispute regarding the land is pending in the court and he had given him the documents of the dispute with regard to the plot. He made those documents as a part of the investigation but he could not get Lakhan's signature on those documents. Prem Singh was not an eye-witness of the incident, he did not record the statement of Prem Singh. Apart from the witnesses of the FIR, there were no other eye-witnesses of the incident. It was not clear that in whose field the deceased had come after defecation. Rekha had not told him about dumping of cow dung in any plot, but she told him about dumping cow dung in her field.

62. During his cross-examination, many suggestions were put to the witness, which have been denied by P.W.-4 and stated that it was suggested to this witness, that it is wrong to say that Rekha was not present at the place and at the time of the incident because at that time she has been residing outside Mathura with her maternal grandfather's house in Delhi and with other relatives. It is wrong to say that by overwriting on letter 'P' was converted into the letter 'A', making it '9:30 A.M.'. It is wrong to say that the FIR was not lodged on the date and time, as shown but the same was lodged after the proceedings of the inquest of the dead body.

63. It is noteworthy to emphasis that PW-4 S.I. Rakesh Kumar Awasthi surprisingly stated in his cross-examination, firstly; he could not give any reason as to why he recorded the statement of Rekha so late on 5.12.2007; secondly; the scribe of the complaint Mahavir Singh did not state that he had written the complaint; thirdly; according to the site plan, the firing was shown from the house of the accused person. But in the site plan (Ex.Ka.-2), there is no sign or indication to show that the firing was shown from the house of the accused person and contrary to the above fact the way for reaching the accused persons at the spot has been shown at serial no. 2 of the site plan.

64. After considering the cross-examination of this witness it is revealed that the material facts had not been disputed, which are: (a) the FIR was registered at 10:35 A.M. by PW-5 HC Ramesh Chand on the basis of the complaint of PW-1 Mangal Singh; (b) the inquest proceedings were commenced on 11.05 A.M. on 10.11.2007 at the spot (Khet near the Neem tree); (c) the Crime No. 681 of 2007 under section 302 IPC which was registered at 10.35 A.M. is written in the inquest report (Ex.Ka.-4); (d) the inquest report and other police papers (Ex.Ka.-5 to Ex.Ka.-8) were prepared in presence of Panchan (witnesses) at the spot; (e) PW-4 sent the dead body for post-mortem with the copy of the FIR and other police papers; (f) PW-4 recorded the statements of PW-1 and PW-2 on 10.11.2007 under section 161 Cr. PC. (g) PW-4 took the blood-stained and plain earth from the spot. There is no suggestion about the above facts.

65. PW-5 HC 124 Ramesh Chand in his examination-in-chief stated that on 10.11.2007, he was posted as Head Mohrrir at PS. Highway, Mathura, he registered an FIR as case crime no. 681 of 2007 under section 302 IPC at 10:35 A.M., against the appellants and co-accused on the basis of the written complaint of the informant and endorsed it in G.D.Report No. 19 at 10:35 A.M. on 10.11.2007.

66. PW-5 HC 124 Ramesh Chand in his cross-examination stated that Lakhan and Moolchand had come with the informant Mangal Singh to the police station to lodge the report, Mahavir Singh did not accompany them. It is true that at the end of the main page of the complaint, no signature was made by the informant, but there is written as 'Prathee' at the bottom of the complaint. The special report of the case was sent at 16:20 hours by G.D. Report No. 29 dated 10.11.2007 through Constable Dhanesh on the same day. It takes time to prepare a special report, therefore, there was a delay in sending it. It is true that the Ravanagi G.D. Report No. 29 is signed by constable Dhanesh but there is no signature of Constable Dhanesh on the Vapisi G.D. Report No. 46. It is also true that there is no date under the signature of Circle Officer. It is wrong to say that Constable Dhanesh did not return on the same day and the FIR has been lodged anti-timed after stopping the G.D. The FIR was received at the CJM office on 13.11.2007. The overwriting shown in the letter 'A'; after digits '10:35 A.M.; and '6' in the Chick FIR had been caused by a bonafide mistake.

67. Many suggestion have been asked to P.W.-5, H.C. Ramesh Chand during his cross-examination which have been denied by this witness and stated that it is wrong to say that Mangal Singh did not lodge the report and after lodging the report, the signature of Mangal Singh was obtained. It is wrong to say that the FIR was not lodged at 10:35 A.M. It is wrong to say that the records of sending the special report are forged. It is wrong to say that the FIR was lodged after the proceedings of the inquest report and its G.D. Report No. 19's entry was prepared after the time as shown in the Report. It is also wrong to say that the informant was not available on 10.11.2007 and his signature was obtained on any other date.

68. The registration of the FIR has been assailed by the appellants on the ground that, firstly; there is overwriting in the Chik FIR in serial no. 4, 5, and 9, the time of the incident wherein it was written as 9:30 A.M., the letter 'A' is written over letter 'P' in serial no. 4; in serial no. 5 originally digit '1' was written but after overwriting on digit '1' has been converted into digit '0' at the time of registering the FIR '10:35' A.M.; the distance between the place of the occurrence and Police Station originally digit '2' was written but after overwriting digit '2' has been converted into the digit '6' at serial no. 9 as '16 Km; secondly; the delay of about 6 hours in sending the special report to the Magistrate; thirdly; the FIR is received in the office of CJM on 13.11.2007.

69 It is noteworthy that there is no overwriting in the G.D. entry of the Chick FIR, which is entered into the G.D. Report No. 19, at 10:35 A.M. dated 10.11.2007, with regard to the time of registration of the FIR. This fact has not been disputed and there is no suggestion in this regard. There is overwriting in 3 places, serial no. 4 and 5 have no significance because the appellants have not disputed the time of the incident and the distance between the place of the occurrence and the Police station to PW-5. In addition to the above, according to the complaint, the incident took place at 9:30 A.M. is clearly mentioned.

70. PW-7 Dr. Surendra Singh in his examination-in-chief stated that he was posted as Medical Officer at District Hospital Mathura on 10.11.2007 and conducted the post-mortem of the body of Kamal Singh at 3:40 P.M. on 10.11.2007. The post-mortem report (Ex.Ka.-23) disclosed multiple firearm ante-mortem injuries on the corpse of Kamal Singh. The deceased was a simple saddle, aged about 18 years, rigor mortis was present all over the body. He found the following ante-mortem injuries:

1. Multiple wounds of entry of firearms size 0.5 cm x 0.5 cm skin deep present on the right hand, their margins were inverted.

2. Multiple wounds of entry of firearms size 0.5 cm x 0.5 cm x cavity deep present on the chest and the back of the neck, their margins were inverted.

3. Multiple wounds of entry of firearms size 0.5 cm x 0.5 cm skin deep present on the abdomen, their margins were inverted.

71. PW-7 Dr. Surendra Singh further stated in his statement-in-chief that during the post-mortem, 10 pellets (3 from heart, 2 from the right lung, 3 from the left lung, and 2 from the liver) were recovered from the corpse which was handed over to the concerned constable in a sealed cover envelope. The membranes of the brain of the deceased were yellow, and accumulated blood was present, both lungs were torn, the stomach was empty, liver was torn and both kidneys were also yellow. The doctor further opined that death would have caused 8 hours earlier to the post-mortem. He further stated that he had received 9 police papers with the dead body at the time of post-mortem, which is paper nos. 4A/13 to 4A/21, and he handed over all the police papers along with the post-mortem report to the concerned Constable.

72. PW-7 Dr. Surendra Singh in his cross-examination stated that the injuries of the deceased might have been caused 8-12 hours before the post-mortem. It is true to say that if a shot is fired from the front, then all such injuries could not be caused. It has been suggested to this witness that he had not received the police papers at the time of the post-mortum and he signed them later. P.W.7 specifically denied the above suggestion.

73. It is surprising fact elicited from the cross-examination of this witness, PW-7 Dr. Surendra Singh stated in his cross-examination that it is true to say that if a shot is fired from the front side, then all such injuries could not be caused. But contrary to the above fact, the post-mortem report (Ex.Ka.-23) shows that injury no. 2 is written as "Multiple wounds of entry of firearms size .5 cm x .5 cm x cavity deep on both side chest & neck, margins inverted". Injury no. 1 is on the right arm & forearm and injury no. 3 is on the abdomen. There is no other firearm injury was found on the back side of the deceased.

74. After a close scrutiny of the testimony of PW-7 Dr. Surendra Singh, it is elicited from the evidence that three gunshot injuries caused to the deceased in front of his body but this fact has not been disputed and no suggestion was asked on this account. The doctor deposed that he received the sealed dead body with 9 police papers, without disputing the above fact with regard to receiving the copy of the FIR, it has been suggested only that he had not received the police papers at the time of the post-mortum.

75. Having noticed the contentions of learned counsel for the parties and having taken a glimpse of the evidence on record, now we shall consider the argument of learned counsel for the appellants.

76. It has been submitted that PW-1 Mangal Singh, PW-2 Lakhan Singh, and PW-3 Rekha are relatives and interest/inimical witnesses, the testimony of PW-1, PW-2, and PW-3 is not reliable.

77. It is a settled position of law that the testimony of a relative is not to be treated as inherently tainted, the court only needs to ascertain whether the evidence is inherently probable, cogent, and consistent. The mere fact that they are related to the deceased itself is no ground to discard their evidence unless something critical is brought on record that the witness being an interested witness was speaking falsely to implicate the appellant. In Nagappan v. State by Inspector of Police, Tamil Nadu6, it has been held that where the evidence of 'interested witnesses' is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they are interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness.

78. In Yogesh Singh v. Mahaveer Singh and Others, (2017) 11 C 195, the Apex Court observed as under: (SCC p. 212, para 28)

"28. A survey of judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence can not be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly, should be relied upon. (See: Anil Rai v. State of Bihar7, State of U. P. v. Jagdeo8, Bhagaloo Lodh v. State of U. P.9, Dahari v. State of U.P.10, Raju v. State of T.N.11, Gangabhavani v. Rayapati Venkat Reddy12 and Jodhan v. State of M.P.13)

79. Keeping in mind, the settled position of law, we are of the view that merely because PW-1 Mangal Singh, PW-2 Lakhan Singh, and PW-3 Rekha, are family members of the deceased, their evidence cannot per se be discarded. The mere statement that being relatives of the deceased they are likely to falsely implicate the appellants cannot be a ground to discard the evidence of eyewitnesses, which is otherwise cogent and credible.

80. Now we deal with the next contention of the learned counsel for the appellant, that the prosecution failed to prove the motive against the appellants and the motive alleged has not been proved. On the behalf of the appellants, it is emphasised that there is enmity against the informant but not against the deceased, the prosecution has failed to prove that the deceased was doing Pairavi against the appellants.

81. A conspectus of the evidence noticed above indicates that there is enmity between the PW-1 Mangal Singh and the appellants, because of; firstly; on 2.7.2007 (about 4 months before the incident), Jagdish, Sahukar, Raghunath, and Vinod had beaten Kamal Singh (the deceased) and Lakhan (PW-2) and in this regard, a criminal case was pending against them; secondly; the informant PW-1 Mangal Singh had instituted a Civil Suit with regard to the plot in question against the appellant Jagdish and others. PW-1 Mangal Singh stated that Kamal Singh was doing Pairavi of the cases, so he was murdered. He further stated in his cross-examination that Kamal Singh used to do Pairavi of the cases with him, and used to take him to court. He had dug the foundation in the plot 10-12 days before 2.7.2007, but the accused persons restrained him from doing construction over the plot, thereafter, he instituted a Civil Suit against the appellant Jagdish and others (father & brothers of Jagdish).

82. It would be useful to notice the law with regard to the role of the motive in assessing the credibility of the prosecution case. In Stalin v. State represented by the Inspector of Police, (2020) SCC 524, (3 Judge), the Supreme Court has observed as under: (SCC p. 535, para no. 9)

"9. As observed and held by this Court in Jafel Biswas v. State of West Bengal14, the absence of motive does not disperse a prosecution case if the prosecution succeed in proving the same. The motive is always in the mind of person authoring the incident. Motive not being apparent or not being proved only requires deeper scrutiny of the evidence by the courts while coming to a conclusion. When there are definite evidence proving an incident and eye-witnesses account prove the role of accused, absence in proving of the motive by prosecution does not affect the prosecution case."

83. In Yogesh Singh v. Mahabeer Singh (2017) 11 SCC 195, the Supreme Court observed as under: (SCC p. 219, para 46)

"46...It is a settled legal proposition that even if the absence of motive, as alleged, is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of the witnesses as to commission of an offence, motive looses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. (Hari Shankar v. State of U.P.15, Bikau Pandey v. State of Bihar16, State of U.P. v. Kishanpal17, Abu Thakir v. State of T. N.18 and Bipin Kumar Mondal v. State of W.B.19)

84. It is trite law that even though the existence of motive loses its significance when there is a reliable ocular account but where the ocular testimony appears to suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case. (vide: Badam Singh v. State of M.P.20)

85. The instant case is based on direct evidence of the eye-witnesses PW-1 Mangal Singh, PW-2 Lakhan Singh, and PW-3 Rekha, it is settled in various pronouncements of the Apex Court that the motive is always in the mind of the person authoring the incident. In case there is direct trustworthy evidence of the witnesses as to the commission of an offence, motive loses its significance.

86. It has been submitted that the entire prosecution story is an afterthought and the real occurrence had not been truly reported and pointed out firstly; the special report (SR Report) has been sent after an unexplained delay of about 6 hours; secondly; the time of registration of the FIR has been corrected by overwriting in the Chik FIR; the FIR was first received by the learned Magistrate on 13.07.2007; thirdly; the scriber of the complaint (Ex.Ka.-1) Mahavir Singh has not been examined; the FIR of the present case has not been lodged by the informant because the written complaint (Ex.Ka.-1) had not been signed by the informant and the sign of the informant on back of the complaint was made on any other date; clearly indicating that the FIR was registered ante-timed.

87. We have noticed (supra) that PW-1 and PW-2 consistently stated that they went to lodge the FIR along with Moolchand, this fact has not been controverted and even there is no suggestion with regard to this fact. It has also not been disputed that he had received a copy of the FIR after registering the FIR at Police Station at 10:35 A.M. or not; his signature on the complaint was obtained by PW-5 HC Ramesh Chand any other time. PW-4 S.I. Rakesh Kumar Awasthi clearly stated that at 11:05 A.M. on 10.11.2007, the inquest report (Ex.Ka.-4) was prepared at the spot, wherein crime no. 681 of 2007, time of information of crime and time of conducting the inquest report are written. There is no dispute with regard to the above facts and not asked any single suggestion to PW-1 Mangal Singh. In addition to the above, PW-5 HC Ramesh Chand clearly stated that he registered the FIR of the present case at 10:35 A.M. on the basis of the complaint of the informant Mangal Singh, at that time Mangal Singh, his son Lakhan and Moolchand had come to the police station to lodge the FIR, this fact has not been disputed to PW-5. It has also not been disputed to P.W.-5 that a copy of the FIR had been given to the informant after registering the FIR or not, and no suggestion was asked to PW-5 on the above facts.

88. So far as the overwriting in Chick FIR is concern, P.W.-5 HC Ramesh Chand stated that the overwriting is a result of a mistake. The trial court observed with regard to the overwriting in Chick FIR that all overwriting were a result of a bonafide mistake of PW-5. We have noticed above that the overwriting at serial no. 4 and 9 have no significance because the post-mortem has been conducted at 3:40 P.M. on 10.11.2007. There is no dispute with regard to the G.D. Entry of Chick FIR as G.D.Report No. 19, wherein the time of registeration of the FIR at 10:35 A.M. has been written and there is no suggestion in this regard.

89. PW-5 HC Ramesh Chand explained the delay in sending the special report and stated that it takes time to prepare the special report due to this reason the special report was sent at 16:40 hours, after about 6 hours. It is to be noted that PW-5 HC Ramesh Chand, stated that the special report was dispatched through Constable Dhanesh at 16:20 hours on 10.11.2007. It is admitted fact that the Chick FIR containing the signature of CJM on 13.11.2007, but it is not necessary that it was received in the office of CJM on 13.11.2007. We have noticed above that the PW-4 S.I. Rakesh Kumar Awasthi consistently stated that he recorded the statements of eye-witnesses PW-1 and PW-2 on 10.11.2007 under section 161 Cr.PC, this fact has not been disputed even though there is no suggestion with regard to the recording of the statements.

90. It would be useful to notice the law with regard to the importance of sending the special report as well as the FIR before the jurisdictional Magistrate in assessing the credibility of lodging the FIR. In the case of Sheikh Hasib alias Tabarak v. State of Bihar, (1972) 4 SCC 773 (3 Judge) the Apex Court has held as under: (SCC p. 776, para 4)

"4...The legal position as to the object, value and use of first information report is well-settled. The principal object of first information report from the point of view of the informant is to set the Criminal Law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The first information report, we may point out, does not constitute substantive evidence though its importance as conveying the earliest information regarding the occurrence cannot be doubted. It can, however, only be used as a previous statement for the purpose of either corroborating its maker under Section 157 of the Indian Evidence Act or for contradicting him under Section 145 of that Act. It cannot be used for the purpose of corroborating or contradicting other witnesses. ..."

91. In Balram Singh & Anr. v. State of Punjab, (2003) 11 SCC 286, (3 Judge) the Apex Court has observed as under: (SCC p. 291, para 10)

"10...At any rate, while considering the complaint of the appellants in regard to the delay in the F.I.R. reaching the jurisdictional Magistrate, we will have to also bear in mind the credit worthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance the element of delay in registering a complaint or sending the same to the jurisdictional Magistrate by itself would not in any manner weaken the prosecution case."

92. In Yogesh Singh v. Mahabeer Singh (2017) 11 SCC 195, the Supreme Court observed as under: (SCC p. 216-17, para 40)

"40. It has been consistently held by this Court through a catena of judicial decisions that although in terms of Section 157 Cr.PC., the police officer concerned is required to forward a copy of the FIR to the Magistrate empowered to take cognizance of such offence promptly and without undue delay, it cannot be laid down as a rule of universal application that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable and the trial stands vitiated. When there is positive evidence to the fact that the FIR was recorded without unreasonable delay and investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the Court, then in the absence of any prejudice to the accused, it cannot be concluded that the investigation was tainted and the prosecution story rendered unsupportable. (See: Pala Singh v. State of Punjab21, Sarwan Singh v. State of Punjab22, Anil Rai v. State of Bihar23, Munshi Prasad v. State of Bihar24, Aqeel Ahmad v. State of U.P.25, Dharamveer v. State of U.P.26 and Sandeep v. State of U.P.27)

93. In the present case there is prompt lodging of the FIR and thereafter the investigating officer had recorded the statement of the informant P.W.-1 Mangal Singh and P.W.-2 Lakhan Singh and prepared the inquest report at the spot at 11;05 AM, dispatched the dead body to the mortuary and the post mortem of the deceased was conducted same day at 3:40 P.M. and copy of the F.I.R. and other police papers were handed over to PW-7 Dr. Surendra Singh and these papers also contained the signature of PW-7; PW-5 HC Ramesh Chand explained the delay of about 6 hours in sending the special report. In these circumstances, the delay in sending the special report to the Magistrate is immaterial. So far as the submission of the counsel for the appellants that there is a delay in reaching the F.I.R. to the jurisdictional Magistrate on 13.11.2007 is concerned. On account of delay in reaching of F.I.R. to the Jurisdictional Magistrate, the prosecution case cannot be disbelieved. There is no overwriting in the G.D. Report No. 19 wherein the FIR of the case had been entered into it, prepared at 10:35 A.M. Moreover, it has not been suggested to P.W.-1 that he had signed at the bottom of the complaint at any other date. In view of the above circumstances, we have no reason to entertain any doubt in our mind that the F.I.R. was not registered at 10:35 A.M. on 10.11.2007, we are of the considered view that the FIR had not been registered ante-timed.

94. It has been submitted that PW-1 Mangal Singh, PW-2 Lakhan Singh, and PW-3 Rekha are the chance witnesses and their presence have not been satisfactorily explained, and their presence was not natural, the named independent witnesses Raghuvir Singh and Moolchand have not been examined, and other independent witnesses Prem Singh, Tej Singh, Lekhraj, Padam Singh, and Harbhajan Singh have not been questioned by the I.O. during the investigation, non-examination of material witnesses crucially affects the prosecution version and creates a sense of doubt. PW-1, PW-2, and PW-3 are interested witnesses and their implication is due to the inimical disposition towards the appellants, hence the testimony of PW-1, PW-2, and PW-3 is not reliable, has to be discarded, as it has deliberately not cited the independent material witnesses, therefore, their testimony has also untrustworthy and unreliable.

95. The word 'chance witness' has been defined and explained by His lordship Mahajan, J., in Puran v. The State of Punjab28 as; 'such witnesses have the habit of appearing suddenly on the scene when something is happening and then disappearing after noticing the occurrence about which they are called later on to give evidence.' If the court comes to the conclusion that the testimony of a chance witness is credible, the evidence cannot be thrown out merely on the ground that the witness happened to be present by chance (Vide: Sarvesh Narain Shukla v. Daroga Singh & Ors.29). Non-examination of independent witnesses by itself may not give rise to an adverse inference against the prosecution, but when the evidence of the alleged eye-witnesses raises serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witnesses would assume significance (Vide: Hem Raj & Ors. v. State of Haryana30)

96. Hence, we will have to first consider whether the evidence of PW-1, PW-2, and PW-3 eye-witnesses raises serious doubts on the point of their presence near the place of the incident at the time of the occurrence.

97. It is a well-settled legal principle that the evidence of a chance witness cannot be brushed aside simply because he is a chance witness but his presence at the place of occurrence must be satisfactorily explained by the prosecution to make his testimony free from doubt and thus, reliable. It would be useful to notice few decisions of the Apex Court. In Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 the Supreme Court observed as under: (SCC p. 725 para 21 to 23)

"21. In Sachchey Lal Tiwari v. State of U. P.31, this Court while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and passerby had deposed that he had witnessed the incident, observed as under:

'If the offence is committed in a street only a passerby will be the witness. His evidence cannot be brushed aside lightly or viewed with suspicion on the ground that he was a mere chance witness. However, there must be an explanation for his presence there.'

The Court further explained that the expression 'chance witness' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.

22. The evidence of a chance witness required a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh32, Harjinder Singh v. State of Punjab33, Acharaparambath Pradeepan & Anr. v. State of Kerala34 and Sarvesh Narain Shukla v. Daroga Singh & Ors.35). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded. (Vide: Shankarlal v. State of Rajasthan36)

23. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident. (Vide: Thangaiya v. State of Tamil Nadu37)...."

98. In Rana Pratap and others v. State of Haryana, (1983) 3 SCC 327, the Supreme Court observed as: (SCC p. 329, para 3)

"3.....We do not understand the expression 'chance witnesses'. Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are "chance witnesses", even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence."

99. Keeping in mind the aforesaid position of law, we shall examine the arguments advanced by the parties as also the evidence on record. Thus, the real test is whether the testimony of PWs 1 to 3 are intrinsically reliable or not and their presence is satisfactorily explained or not.

100. It has been submitted that the presence of PW-1 Mangal Singh and PW-2 Lakhan at the tubewell of Prem Singh at the time of the incident has not been satisfactorily explained; they are chance witnesses and they kept mum till the accused persons did not flee away from the spot.

101. In Rana Pratap Singh's case (supra) it has been observed that 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 removed from the spot as far as possible. Yet others rush to rescue the victim, even going to the extent of counter-attacking the assailants. Everyone 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 the evidence in a wholly unrealistic and unimaginative way.

102. Upon consideration of the entire testimony of PW-1 Mangal Singh and PW-2 Lakhan Singh, it reveals that on behalf of the appellants, no question was asked with regard to the conduct of the eyewitnesses at the time of the incident as well as after the incident. From the evidence of PW-1 and PW-2 discussed supra, it is amply clear that at the time of the incident Pareh (irrigation of fields before seeding) was going on; PW-1 along with PW-2 went to ask Prem Singh to get water from this tubewell for irrigation of his field, which is located near the tubewell of Prem Singh, at that time Prem Singh was present at the tubewell; the incident took place at 9:30 A.M. on 10.11.2007, when Kamal Singh was returning home after defecation; they saw the incident from the tubewell of Prem Singh; co-accused Raghunath and Sahukar stopped Kamal Singh from the front side, as soon as he turned back Jagdish and Manoj shot fire upon him from a distance of 5-6 steps; they reached the spot immediately; PW-1, PW-2, and Moolchand went to the police station to lodge the report; the FIR of the incident was registered promptly against the appellants and the co-accused at 10:35 A.M. on 10.11.2007.

103. After analysing the evidence of PW-1 Mangal Singh, we have noticed above that the incident took place in the outskirts of the village in open field of Prem Singh, which is 150 steps away from the tubewell; there is no obstruction in view of the visibility between the place of the incident and the tubewell, there was no crop standing in the adjacent fields; after receiving the gunshot, Kamal Singh ran towards his house but after 10 steps he fell down and died on the spot; PW-1 usually visited his field and he was not present coincidentally or by chance at the tubewell at the time of the incident.

104. We have noticed above that PW-1 consistently supported the prosecution version during his cross-examination and stated that he along with Lakhan went to ask Prem Singh to get water from his tubewell for irrigation of his field at the time of the incident and they saw the incident from the tubewell. At that time Prem Singh was present at the tubewell. The incident took place in the field of Prem Singh. Raghunath and Sahukar stopped Kamal Singh from the front side, as soon as he turned back, Jagdish and Manoj fired upon him. Kamal Singh was shot fire from a distance of 5-6 steps. PW-1 and PW-2 Lakhan reached the spot immediately, and after hearing the noise PW-3 Rekha reached the place of the occurrence, and he along with his son Lakhan, and Moolchand went to the police station to lodge the report and the inquest proceedings were commenced at the spot 11.05 A.M. at the spot. Significantly, that the above facts have not been controverted on behalf of the appellants. The presence of PW-1 Mangal Singh along with PW-2 Lakhan at the tubewell of Prem Singh and conduct of PW-1 just before or after the incident has not been disputed. There is no cross-examination directed against his testimony to discredit his evidence on the above facts. The evidence of PW-1 was not shaken in the cross-examination and nothing infirm has been elicited to cast doubt on his veracity.

105. Moreover, the material facts have also not been disputed by the appellants to PW-1 which are; firstly; the incident took place at 9:30 A.M. on 10.11.2007, when his son Kamal Singh was returning home after defecation and reached the field of Prem Singh; secondly; the appellants Jagdish and Manoj having unlicenced guns (Paunia) in their hands and surrounded the deceased in the field of Prem Singh; thirdly; on 2.7.2007, the appellant Jagdish, Raghunath Singh, Sahukar, and Vinod had beaten the deceased and PW-2 Lakhan, and a criminal case was pending in the court; fourthly; after hearing the noise, PW-3 Rekha reached the spot; fifthly; PW-1 Mangal Singh went to the police station to lodge the report along with PW-2 Lakhan and Moolchand.

106. It is also significant that the appellants had not asked any suggestion to PW-1 on the material facts which are; PW-1 along with PW-2 was present at the tubewell of Prem Singh at the time of the incident; the incident took place at 9:30 A.M. on 10.11.2007 when his son Kamal Singh was returning home after defecation; PW-1 had seen the incident from the tubewell of Prem Singh and the occurrence took place at the field of the Prem Singh; after hearing the gunshot, PW-1 and PW-2 reached the place of occurrence immediately after the incident; on 2.7.2007, the appellant Jagdish, Raghunath Singh, Sahukar, and Vinod had beaten the deceased and PW-2 Lakhan, and a criminal case was pending in the court; PW-1, his son Lakhan (PW-2), and Moolchand went to the police station to lodge the report and police; after hearing the noise, PW-3 Rekha reached the spot.

107. The testimony of PW-1 Mangal Singh has been fully corroborated by PW-2 Lakhan. We have noticed above that PW-2 Lakhan consistently stated that he went to the tubewell of Prem Singh along with PW-1 to ask him to take water for irrigation of his fields; he witnessed the incident from the tubewell of Prem Singh, the incident took place within 2 minutes after his reaching; the incident took place at 9:30 A.M. on 10.11.2007 when his brother Kamal Singh was returning home after defecation and reached in the field of Prem Singh; the appellants Jagdish and Manoj having unlicenced guns (Paunia) in their hands and surrounded the deceased in the field of Prem Singh; Jagdish and Manoj shot fire his brother from the front and PW-2 lodged the report. The above facts have not been controverted by the appellants. It is also relevant to note that the path of the field of PW-1 goes through the field of Prem Singh, wherein the incident took place. In addition to the above, there is no dispute with regard to the place of the incident, the conduct of PW-2 at the time of the incident or after the incident, to this witness. There is no cross-examination directed against his testimony to discredit his evidence on the above facts. The evidence of PW-2 was not shaken in his cross-examination and nothing infirm has been elicited to cast doubt on his veracity.

108. After considering the testimony of PW-2 Lakhan Singh, the presence of PW-2 has been disputed by the appellants as: firstly; the water of the tubewell of Prem Singh was saline, secondly; there were other tubewells of other farmers near to his field, why he had asked Prem Singh to take water for irrigation, thirdly; why PW-2 and his father PW-1 had gone to the tubewell of Prem Singh, one person could have asked. It is noticeable that testimony of PW-1 and PW-2 is similar and it has been observed above that testimony of PW-1 is fully corroborated by PW-2 and the above facts have not been disputed to PW-1 by the appellants. It is also relevant to note that the appellants have questioned the above facts first time to PW-2 Lakhan Singh.

109. Ongoing through the evidence of PW-1 Mangal Singh and PW-2 Lakhan Singh it is clear that they assigned a reason for his presence at the tubewell of Prem Singh. We cannot be oblivious of the rural milieu. No adverse inference can be drawn that they were not going daily and their testimony that they were present at the tubewell on the fateful day should be brushed aside. There was nothing unusual, therefore, their being present at the material time more so when there is nothing on record to disbelieve their uncontroverted testimony. We are convinced that their evidence is neither doubtful nor creates any suspicion in our mind. We are of the considered view that the presence of PW-1 and PW-2 at the tubewell of Prem Singh, at the time of the incident satisfactorily explained and proved and they were not present coincidentally or by chance at the tubewell of Prem Singh at the time of the incident and we have no hesitation in holding that they satisfy the test of careful scrutiny and cautious approach. They can be relied upon.

110. It has been pointed out that there is a inconsistency between the testimony of PW-3 Rekha and PW-4 S.I. Rakesh Kumar Awasthi with regard to the presence of PW-3 near the place of the incident. PW-3 Rekha stated in her examination-in-chief that his brother was returning home from the field of Prem Singh after defecation at 9:30 A.M., at that time she was dumping the cow dung in the field; whereas in her cross-examination she stated that at the time of the incident she was dumping the cow dung in her plot and she told to the police that her plot situated near the field of Prem Singh and also told about dumping the cow dung in that plot if it is not written in her statement then she can not tell the reason; whereas PW-4 S.I. Rakesh Kumar Awasthi stated that Rekha had not told him about dumping the cow dung in the plot.

111. It has been settled in various pronouncements of the Apex Court that every improvement is not fatal to the prosecution case, in cases where an improvement creates a serious doubt about the truthfulness or credibility of a witness, the defence may take advantage of the same. (vide: Ashok Vishnu Davare v. State of Maharashtra38, Radha Kumar v. State of Bihar (now Jharkhand)39, Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. v. State of Maharashtra40 and Baldev Singh v. State of Punjab41)

112. In Yogesh Singh v. Mahabeer Singh & Ors. (2017) 11 SCC 195, the Apex Court has observed as under; (SCC p. 212, para 29)

"29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs to special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission," (See: Rammi @ Rameshwar v. State of M.P.42; Leela Ram (dead) through Duli Chand v. State of Haryana & Anr.43; Bihari Nath Goswami v. Shiv Kumar Singh & Ors.44; Vijay @ Chinee v. State of Madhya Pradesh45; Sampath Kumar v. Inspector of Police, Krishnagiri46; Shyamal Ghosh v. State of W.B.47 and Mritunjoy Biswas v. Pranab @ Kuti Biswas & Anr.48)

113. PW-1 Mangal Singh stated in his examination-in-chief that on hearing the noise, Raghuvir, Moolchand, and his daughter Rekha had reached the spot. He further stated in his cross-examination that Raghuvir, Moolchand had not seen the incident; whereas PW-2 Lakhan Singh in his examination-in-chief stated that his sister Rekha, who was coming home after dumping the cow dung from the field also saw the incident. We have noticed above that the plot and field of the informant (PW-1 Mangal Singh) are situated at different places. The plot is located adjacent to the houses of Moolchand, Lakhan, Gutia, and Mishrilal; whereas the field is situated near the tubewell of the Prem Singh, and the house of Gutia is situated 20 steps away from the place of the incident. In view of the above discussion, we are of the view that there is a material inconsistency with regard to the place where PW-1 Rekha was claiming to be present at the time of the incident, therefore, the presence of PW-3 Rekha, at her field at the time of the incident has not been satisfactorily explained by the prosecution.

114. Now we shall examine the next contention about the consequence of non-examination of the independent witness. It is admitted fact that the co-accused Raghunath Singh is real brother of the informant Mangal Singh. The appellant Jagdish and accused Sahukar are real brothers and the appellant Manoj Kumar is son of the appellant Jagdish and the informant and the appellants are cousin. It is also significant that the other eye-witnesses named in the FIR, Raghuvir Singh and Moolchand are also cousins of the informant. It is also not disputed that the plot in question is land of Gaon Sabha.

115. PW-1 Mangal Singh stated in his cross-examination that Moolchand and Raghuvir Singh did not see the incident. It is pertinent to mention here that the informant, the appellants, co- accused Raghunath Singh, Shahukar Raghuvir, Moolchand and scribe of the complaint Mahavir Singh are cousins and are kins of the same ancestor, therefore, Raghuvir Singh and Moolchand are not independent witnesses of the incident because they are also relatives of the informant, although, the appellants argued that they are independent witnesses of the incident.

116. It is a settled position of law that non-examination of independent witnesses by itself may not give rise to an adverse inference against the prosecution, but when the evidence of the alleged eyewitnesses raises serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witnesses would assume significance. It is also well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement. In Raghubir Singh v. State of U. P.49 it has been held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced with unnecessary and redundant multiplication of witnesses.

117. The consequence of non-examination of material witness has been considered in State of H. P. v. Gian Chand, (2001) 6 SCC 71, the Supreme Court held as under: (SCC p. 81, para 14)

"14...Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution. The Court has first to assess the trustworthiness of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. However, if the available evidence suffers from some infirmity or cannot be accepted in the absence of other evidence which though available has been withheld from the court, then the question of drawing an adverse inference against the prosecution for non-examination of such witnesses may arise..."

118. Keeping in the mind the position of law, we are of the view that the testimony of the eye-witnesses cannot be discarded merely on the ground of non-examination of Raghuvir Singh and Moolchand, however, they are not independent witnesses. We, therefore, do not find any merit in the submission made by the learned counsel for the appellants that the prosecution story should not be believed because the prosecution has not examined Raghuvir Singh, Moolchand before the court.

119. It has been submitted on behalf of the appellants that there is inconsistency between the ocular evidence and the medical evidence.

120. Taking the advantage of the opinion of PW-7 Dr. Surendra Singh as he stated in his cross-examination that if a shot is fired from the front side, then all such injuries could not be caused to the deceased, it has been submitted that there is variance between the ocular and medical evidence. We have noticed above that all the injuries have been received by the deceased from the front side. PW-1 Mangal Singh and PW-2 stated consistently that the appellants shot fire to the deceased from the front side.

121. In Yogesh Singh v. Mahabeer Singh (2017) 11 SCC 195, the Supreme Court held observed as under: (SCC p. 217, para 43)

"43....In any event, it has been consistently held by this Court that the evidentiary value of medical evidence is only corroborative and not conclusive and, hence in case of a conflict between oral evidence and medical evidence, the former is to be preferred unless the medical evidence completely rules out the oral evidence. (See: Solanki Chimanbhai Ukabhai v. State of Gujarat50, Mani Ram v. State of Rajasthan51, State of U.P. v. Krishna Gopal52, State of Haryana v. Bhagirath53, Dhirajbhai Gorakhbhai Nayak v. State of Gujarat54, Thaman Kumar v. State (UT of Chandigarh)55, Krishnan v. State56, Khambam Raja Reddy v. Public Prosecutor57, State of U.P. v. Dinesh58, State of U.P. v. Hari Chand59, Abdul Sayeed v. State of M. P.60, and Bhajan Singh v. State of Haryana61)"

122. It is undisputed fact that the deceased received 3 gunshot injuries, injury no. 1 is on right arm and forearm; injury no. 2 is on both chest and neck, and injury no. 3 is on the abdomen and above three injuries having multiple firearm injuries. PW-1 Mangal Singh and PW-2 Lakhan Singh consistently stated that the appellants shot fire to the deceased by unlicenced guns (Paunia) from the front side from a distance of 5-6 steps. Apart from this, there is no dispute with regard to injury no. 2, as mentioned in the post-mortem report, and on behalf of the appellants, no question was put to PW-7 Dr. Surendra Singh regarding injury no. 2, which has been caused on 'both chest and neck'. In view of the above, we are of the considered view that ocular testimony of PW-1 and PW-2 is fully corroborated by medical evidence.

123. It has also been submitted that there is no recovery of empty cartridge/s from the place of occurrence, even though all the eyewitnesses have stated that three gunshots were fired and PW-1, PW-2, and PW-3 have reached on the spot immediately and the weapons recovered could not be connected with the crime.

124 It is a settled position of law that any omission on the part of the investigating officer cannot go against the prosecution case if it is otherwise supported by reliable and credible evidence. It is also settled that unless the lapses on the part of the investigation are such as to cast reasonable doubt about the prosecution story or seriously prejudice the defence of the accused, the court will not set aside the conviction. In C. Muniappan and Ors. v. State of Tamil Nadu, AIR 2010 SC 3718, the Apex Court observed as under;

"The defect in the investigation by itself cannot be ground for acquittal. If primacy is given to such designed or negligent investigation or to the omissions or lapses be perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."

125. Thus, the prosecution case cannot be doubted merely on the ground of non-recovery of 'empties' fired from the unlicenced guns (Paunia) at the deceased.

126. The next and last submission of learned counsel for the appellants is that the Sessions Judge acquitted co-accused Raghunath Singh and Sahukar under Section 302 read with 34 of IPC, therefore, on the same evidence the appellants should not have been convicted by the Sessions Judge. 

127. It is needless to observe that it has been established through a catena of judgments of the Apex Court that the maxim 'falsus in uno falsus in omnibus' is not a sound rule to apply in the conditions in this country and therefore, it is the duty of the Court in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If the remaining evidence is trustworthy and the substratum of the prosecution case remains intact, then the court should uphold the prosecution case to the extent it is considered safe and trustworthy. (vide: Deep Chand v. State of Haryana62)

128. In Sucha Singh & Anr. v. State of Punjab, (2003) 7 SCC 643, the Supreme Court observed as: (SCC p. 652, para 18)

"18..Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence, prayer is to apply the principle of 'falsus in uno falsus in omnibus' (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is duty of the court to separate the grain from the chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of a particular material witness or a material particular would not ruin it from the beginning to the end. The maxim 'falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branned as liars. The maxim 'falsus in uno falsus in omnibus' not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See: Nisar Ali v. State of U.P.63). Merely because some of the accused persons have been acquitted, though evidence against all of them so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See: Gurcharan Singh v. State of Punjab64). The doctrine is a dangerous one, especially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See: Sohrab v. State of M.P.65 and Ugar Ahir v. State of Bihar66. An attempt has to be made to, as noted above, in terms of the felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See: Zwinglee Ariel v. State of M.P.67 and Balaka Singh v. State of Punjab68). As observed by this Court in State of Rajasthan v. Kalki69 normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to lebel the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar70.."

129. As discussed above the role assigned to the appellants and co-accused Raghunath Singh, Sahukar are different. The principle of "falsus in uno falsus in omnibus" is not applicable in India. It is the duty of the court to separate the grain from the chaff. Falsity of a witness would not ruin it from the beginning to the end. In view of the above, it cannot be said that the ground of acquittal of Raghunath Singh and Sahukar under section 302 read with section 34 IPC, the prosecution case can be doubted and the testimony of PW-1 Mangal Singh and PW-2 Lakhan Singh can be disbelieved against the appellants.

SUMMARY OF OUR ANALYSIS AND THE CONCLUSION DERIVED THEREFROM

130. Ongoing through the entire evidence and keeping in mind the settled position of law, we are unhesitatingly of the opinion that the testimony of eye-witnesses PW-1 Mangal Singh and PW-2 Lakhan Singh is reliable, cogent, and trustworthy to prove the guilt of the appellants. In view of the above discussion, we hold that PW-1 and PW-2 are not chance witnesses. In support of this conclusion regard being had to the following circumstances.

(a) At the time of the incident, Pareh (irrigation of fields before seeding) was going on, and it was the intervening period between two crops (Kharif and Ravi).

(b) The field of PW-1 is located near to the tubewell of Prem Singh, which is in the vicinity of the outskirts of the village, PW-1 and PW-2 used to go for defecation daily in his field from the way which goes through the field of Prem Singh.

(c) On the way, between the house of PW-1 and the field of PW-1, there is a field of Prem Singh which is adjacent to the outskirts of the village, wherein the incident took place, then the other field of the Prem Singh located after it then the tubewell is situated. PW-1 and PW-2 had used to go to their field through this way usually.

(d) The presence of PW-1 and PW-2 near their field at the tubewell of Prem Singh is natural at the material time because it was the intervening period of two crops. At that time commonly the farmers do the work in their field to keep out their Kharif crop outside from their fields and prepare the fields for Ravi crop.

(e) PW-1 Mangal Singh has lodged the F.I.R. promptly within one hour and 5 minutes after the incident.

131. Upon close scrutiny of the entire evidence, we have observed that the appellants did not put any questions or suggestions to the eye-witnesses PW-1 Mangal Singh and P.W.2 Lakhan Singh on material facts such as: (i) the incident took place at 9:30 A.M. on 10.11.2007, when Kamal Singh was returning home after defecation, (ii) the appellants having unlicenced guns (Paunia) in their hands and surrounded the deceased in the field of Prem Singh and shot fire the deceased from the front side, (iii) PW-1 Mangal Singh along with PW-2 Lakhan was present at the tubewell of Prem Singh at the time of the incident, (iv) PW-1 along with PW-2 had seen the incident from the tubewell of Prem Singh and they reached the spot immediately after the incident, (v) PW-3 Rekha reached the spot after hearing the noise, (vi) the FIR of the case has been lodged by PW-1 at 10:35 A.M. on 10.11.2007.

132. For all the reasons recorded and discussed above, we are of the considered view that the prosecution has successfully proved the charge of offence punishable under section 302 read with section 34 IPC against the appellants Jagdish and Manoj Kumar beyond reasonable doubt. The finding of the trial court is based on proper appreciation of the evidence. Therefore, we affirm the conviction and sentence awarded to the appellants Jagdish and Manoj hold them guilty for offence punishable under section 302 read with section 34 IPC. We, thus, do not find any merit in these appeals. The Criminal Appeals no. 3271 of 2011 and 3210 of 2011 are dismissed accordingly. The appellants are in jail.

133. Let a certified copy of this judgment with original record be sent to the trial court for information and compliance forthwith. The office is directed to provide the certified copy of the judgment separately to the appellants promptly.

 
Order Date:- 01.07.2021
 
AKS
 

 

 
(Sanjay Kumar Pachori,J.) 				   (Bachchoo Lal,J.)