Phool Chandra Yadav vs State Of U.P.
2021 Latest Caselaw 3124 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Judgment reserved on: 25.01.2021
 
	Judgment delivered on :04.03.2021
 
Court No. - 11
 

 
Case :- CRIMINAL APPEAL No. - 509 of 2010
 

 
Appellant :- Phool Chandra Yadav
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Riyaz Ahmad,Kapilmishra,N M Ali,Satya Prakash Mishra
 
Counsel for Respondent :- Govt. Advocate,Vashu Dev Mishra
 

 
A N D
 

 
Case :- CRIMINAL APPEAL No. - 625 of 2010
 

 
Appellant :- Vidya
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Riyaz Ahamd,Kaushlendra Tewari,N.M.Ali
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Rajan Roy,J.

Hon'ble Saurabh Lavania,J.

(Per : Rajan Roy, J.)

Heard Sri Jyotindra Mishra, learned Senior Counsel assisted by Sri Kaushlendra Tewari and Sri Kapil Mishra, Advocate for appellant and Sri Umesh Verma, learned A.G.A. for the State.

Both these appeals have been filed under Section 374(2) Cr.P.C. challenging the common judgment and order dated 20.02.2010 passed by Special Judge SC/ST Act, Lucknow in Session Trial No. 387 of 2003 (Case Crime No. 340 of 2002) and Sessions Trial No. 388 of 2003 (Case Crime No. 351 of 2002).

The appellant of Appeal No. 509 of 2010, Phool Chandra Yadav has been convicted under Sections 302, 504, 506 I.P.C. and Section 3(2)(v) SC/ST Act and in Sessions Trial No. 387 of 2003 he has been convicted under Section 4/25 of Arms Act in Sessions Trial No. 388 of 2003.

Appellant of Appeal No. 625 of 2010, Vidya has been convicted only under Section 302, 504, 506 I.P.C. and Section 3(2)(v) SC/ST Act in Sessions Trial No. 387 of 2003.

As per the prosecution story, at 7.00 a.m. on 25.11.2002 when the deceased Ram Bali Raidas left his house for going to work to Khairabad by railways from Railway Station, Aisbhagh, as soon as, he reached a distance of 30-35 meters from his house, Phool Chandra Yadav along with his friend Vidya, who resides in the colony, came out from the Loco compound with the damaged boundary carrying a ''big knife' and ''Banka'. They caught hold of deceased, pressed his month and took to him towards the boundary. As soon as PW-1 saw this, he raised an alarm, whereupon, on hearing his shouts, Smt. Shivani Ghosh, who resided in the same Loco Colony and the uncle of the informant namely Santosh Kumar, on seeing this, started to run towards the accused with the informant, when, the two accused threw the deceased to the ground and cut his throat with their knife and ''Banka'. On account of being threatened by the accused none could approach the deceased. When several residents of the colony gathered, they rushed to save the deceased, but, the accused ran away with their weapon, hurling abuses and threatening to kill them. Half the throat of deceased had been cut and he lay dead on the spot.

FIR No. 298 of 2002 (Case Crime No. 304 of 2002) was lodged at 10.45 a.m. on 25.11.2002 at Police Station- Alambagh, which is at about one and half kilometers distance from the scene of crime. The F.I.R. was lodged by son of the deceased namely Ashwani Kumar who is PW-1.

On 05.12.2002 Phool Chandra Yadav's statement was recorded in jail with permission of the Court. On 11.12.2002 Phool Chandra Yadav was taken on remand for recovering the weapon used in commission of the crime. After remand, on his pointing, it is said that a knife was recovered from a semi constructed house inside the Loco compound with the broken boundary wall, which is said to have been used for committing the crime. Consequently, another F.I.R. bearing No. 306 of 2002 (case crime No. 351 of 2002) was registered under Section 4/25 of the Arms Act against Phool Chandra Yadav.

Inquest report pertaining to Case Crime No. 340 of 2002 Exhibit Ka-3 was prepared on 25.11.2002 itself. The inquest started at 11.40 a.m. and ended at 01.40 p.m.

Site Plan relating to commission of the offence on 25.11.2002 is Exhibit Ka-9.

The postmortem was conducted by PW-8 Dr. Shashi Bhushan Prasad and the report is marked as Exhibit Ka-8. According to the postmortem report the deceased had 9 injuries on his body, 8 of which were incise wounds and one was abraded contusion. The Antimortem Injuries were as under :-

"(1) Incised wound 3cm x 1cm x muscle deep. Present on Lt side face. 2Cm below Let. Nostrill.

(2) Incised woulnd 2.5cm x 1cm Present on Rt side Face just Below the Rt angle of the mouth.

(3) Incised wound 3cm x 1cm x Muscle deep Present on Rt. Side cheek. 2Cm below Injury No. (2).

(4) Incised wound 15cm x 10cm x vertegrae deep present on Both side Neck 3cm above. Supra sternal Notch.

(5) Incised wound 3cm x 2cm x muscle deep resent on front of Lt side chest situated 9cm below supra sternum notch and 3cm later to mid line toward Lt side.

(6) Incised would 2cm x .fcm x muscle deep resent on Dorsum of the Lt. Index finger.

(7) Incised wound x 4cm x Bone deep Present on Dorsum of the Rt illegible just below the Base of the (Rt) Little & Ring finger.

(8) Incised wound 12cm x 3cm x muscle deep Present on anteromedial aspect of Lt fore arm 7cm above wrist joints.

(9) Abraided contusion 4cm x 3cm present on outer aspect of Lt side abdomen just above the Lt. iliac crest."

On opening of the body the following was detected by the Autopsy Surgeon:-

"Echymosis present underneath all the Injury mentioned above. Margins of the all above injury is sharp clean cut & well Defined. Trachea, Oesophagus pharns Larinx & Trachea Ring & All mentioned vessels of Both side of Neck cut Through & through underneath the Injury N. (4) CARPALS & Metacarpal of the Rt Hand Just Below the Injury No. (7) are cut."

Cause and reason of death was mentioned as due to shock and haemorrhage as a result of antimortem cut throat injury.

After investigation, police submitted a charge sheet against Phool Chandra Yadav and Vidya under Section 302, 504, 506 IPC and Section 3(2)(v) SC/ST Act in respect to Crime No. 340 of 2002 on 20.12.2002.

After investigation, police submitted a charge sheet only against Phool Chandra Yadav relating to Case Crime No. 351 of 2002 under Section 4/25 of the Arms Act, 1959 on 14.12.2002.

The Magistrate committed the trial of Case Crime No. 304 of 2002 and 351 of 2002 to the Sessions Court on 19.05.2003.

The Sessions Court after taking cognizance framed charges against Phool Chandra Yadav and Vidya under Section 302, 504, 506 IPC and Section 3(2) (v) of SC/ST Act on 04.07.2002 in Session Trial No. 387 of 2003 (Case Crime No. 340 of 2002).

The Session Court framed the charges against Phool Chandra Yadav under Section 4/25 of the Arms Act, 1959 in Session Trial No. 388 of 2003 (Case Crime No. 351 of 2002) on 18.07.2003.

As the accused denied the charges and demanded trial, they were put to trial.

Prosecution produced the following witnesses in support of its case :-

	1. Ashwani Kumar 					PW- 1
 
	2. Santosh Kumar 						PW-2
 
	3. Awadhesh						PW- 3
 
	4. Shivani Ghosh						PW-4
 
	5. Ram Shankar Shankhwar 				PW- 5
 
	6. Gyneshwar Yadav		 			PW -6
 
	7. Ganesh Singh		 				PW - 7
 
	8. Dr. Shashi Bhushan		 			PW-8
 
	9. Sarvesh Kumar Rana 					PW  -9
 
	PW -1 is son of the deceased and is an eye witness.
 
	PW- 2 is brother of the deceased and is also an eye witness. He is also a witness to the Inquest Report.
 
	PW- 3 is witness of the Inquest Report and recovery of blood stained soil/sample soil from the scene of crime, as also, recovery of items near the body of the deceased such as bag etc..
 
	PW - 4 Shivani Ghosh is also an eye witness.
 
	PW- 5 had prepared the Panchnama on directions of the Circle Officer Sri Sarvesh Kumar Rana and collected the blood stained soil and sealed it. He had also prepared the photo of the body (Photo lash). He had also prepared the ''namuna mohar'.
 
	PW- 6 is the then Chowki In-charge Jail Road, Police Station- Alambagh. He is witness to recovery of the weapon used in the crime on 12.12.2002.
 
	PW- 7 is the then SI, Police Station Alambagh. He is also a witness to recovery of the weapon used in the crime and the recovery memo marked as Exhibit Ka-7.
 
	PW - 8 is the Autopsy Surgeon who conducted the postmortem and prepared the postmortem report.
 
	PW - 9 is the Investigating Officer.
 
	The following witnesses were produced by the defence in their support:-
 
	1. Dhirendra Pratap Singh			DW -1
 
	2. Ezaz Ahmad	 				DW- 2
 
	DW-1 is Senior Section Engineer, NE Railways, Aishbagh, Lucknow who had brought the house allotment register pertaining to House No. 53-J allotted to Sri V.C. Ghosh, the husband of PW- 4, to show that the said house was allotted to him and that subsequently it was allotted to Sri Data Deen. He has also produced the document by which it is said that the possession of the said house was given by Sri V. C. Ghosh to Sri Data Deen.
 
	DW- 2 is the Technician in the office of Senior Section Engineer, Carriage Wagon Samadi, NER Junction, Charbhagh, Lucknow. He has also brought the same original register and the order dated 15.05.2002 by which House No. 53-J, Type-I, Locoshade Colony was allotted to Sri Data Deen, Fitter with immediate effect.
 
	Both the Sessions Trials were connected and tried together.
 
	The statement of Vidya Prasad under Section 313 Cr.P.C. was recorded in Session Trial No. 387 of 2003 on 26.08.2009. He denied the Charges. He stated that PW-2 and PW-4 do not reside in the colony.
 
	The Statement of Phool Chandra Yadav under Section 313 Cr.P.C. was also recorded on 26.08.2009. He denied the Charges. PW-2 and PW-4 did not reside in the Colony. He had been implicated out of enmity.
 

The Session Trials were concluded and by a judgment and order dated 19.02.2010 the appellants were convicted, as already stated Phool Chandra Yadav and Vidya were sentenced to rigorous life imprisonment under Section 302 IPC with file of Rs.1000/-, one year rigorous imprisonment under Section 504 IPC, 3 months rigorous imprisonment under Section 506 IPC and 10 years rigorous imprisonment with fine of Rs.500/- under Section 3(2)(v) of SC/ST Act in Sessions Trial No. 387 of 2003. Phool Chandra Yadav was also sentenced to one year rigorous imprisonment under Section 4/25 of Arms Act in Session Trial No. 388 of 2003.

It is against this background that the aforesaid appeals were filed.

The appellants are in jail.

The contention of learned counsel for appellants in nutshell was that the forensic report pertaining to the blood stained soil allegedly collected from the place of crime mentions the blood as disintegrated which is impossible considering the kind of injury alleged to have been inflicted upon the deceased which would drench him in a pool of blood and there would be no question of disintegration of blood, therefore, obviously the alleged murder had taken place elsewhere and not at the place of crime. The place of crime was not proved. The Forensic Report pertaining to the knife also mentioned the blood as disintegrated which is again an impossibility and shows that the knife was planted. The sample obviously was taken from somewhere else.

He emphasized upon delay in lodging the F.I.R., considering the fact that the offence was alleged to have been committed at 7.00 a.m., whereas, the F.I.R. was lodged at 10.45 a.m., although, the police station was merely at a distance of one and half kilometers. He suggested that this delay was used to file a concocted F.I.R., planting eye-witnesses, who, in fact, were not present on the spot and had not seen the crime and to implicate the appellants falsely. He contended that the sister of appellant- Phool Chandra Yadav had run away with the son of deceased. Subsequently, she returned and was married to another person. However, thereafter, again she ran away with the son of the deceased, which led to the lodging of an F.I.R. against the son of the deceased on account of which he was jailed. Phool Chandra Yadav had shifted to another place of residence. He submitted that Phool Chandra Yadav did not have any motive to commit the crime, but, merely on account of the aforesaid he has been falsely implicated.

He invited attention of the Court to the timing on inquest report to submit that there was interpolation therein and secondly that the F.I.R. was lodged subsequently while the inquest report was prepared earlier. Learned counsel for the appellants doubted the presence of Shivani Ghosh at the place and time of commission of the crime.

He invited attention of the Court to her (PW-4) deposition to submit that she has admitted that she has been a witness in other criminal cases also and that she has given her testimony in one case on the asking of the police, therefore, he submitted that she was a professional witness and was unreliable. In the same vein he submitted that the police initially did not examine her but subsequently on an application filed by P.W.- 4 herself, she was examined. He also invited attention of the Court to the testimony of the Investigating Officer PW- 9 where he was not able to state as to when he had recorded the statement of PW- 4, to contend that she was a planted witness and was not reliable. He submitted that PW-2 Santosh Kumar is shown as present at the time and place of crime as an eye-witness and is also a signatory to the Inquest Report but his statement was recorded on 27.11.2002. There is no explanation for the delay in recording his statement, therefore, his presence as an eye witness is doubtful as he has also been planted subsequently. PW-2 admittedly was residing permanently at Faizabad Road, Lucknow and his presence in the house of the deceased in the night preceding the crime is highly suspect, especially as, admittedly, the house comprised of only one living room and it is unthinkable that apart from six inhabitants he would be also able to reside/sleep in the same room in the night, therefore, he is also a planted witness and was not present when the crime occurred. The offence under Section 3(2)(v) of SC/ST Act is not made out and none of the ingredients are satisfied in this case. Such provision of law would not be attracted merely because the deceased is a scheduled caste unless the necessary ingredients are satisfied. As there were two alleged accused Section 34 IPC should have been added, but, the fact, that this was not done, goes to show that the F.I.R. was ante timed. It is said that the informant PW-1 was going to fetch milk in morning when he saw the appellants committing the crime but no milk container was recovered nor is any milk container mentioned in the F.I.R. or the recovery memo. He has also not mentioned any where that he was going to fetch milk, therefore, this witness is also not credible. ''Banka' which is alleged to have been used in the crime along with a ''big knife' was never recovered. The knife recovered was not said to be the big knife. The knife was never produced in Court nor shown to PW-8, the Doctor or the witness of its recovery. As PW-4 was a professional witness, therefore, inclusion of her name in the F.I.R. impeaches the credibility of informant PW-1 also, as, one who introduces a false witness can not be relied as an eye witness. He pointed out inconsistencies in the testimony of PW-1, PW- 2 and PW-4. PW-2 did not even mention the presence of the PW-4. He submitted that from the postmortem report it is evident that the deceased had not eased himself in the morning, therefore, the story setup by the prosecution that he was leaving his house and was murdered at 7.00 a.m. is highly unlikely, especially in view of the consistent testimony of PW-1, PW-2 and PW-4 that every day he used to leave his house at 3.30 to 4.00 am. for going to work by Railways. He pointed out from the postmortem report that no food was found in his stomach which is highly unlikely if a person is leaving his house between 6-7 a.m. for going to work, therefore, the crime was committed much earlier and subsequently a concocted story has been built in connivance with the Police. He suggested that the crime was committed much prior to 7.00 a.m. at some other place and subsequently a story has been setup and this is the reason for delay in lodging the F.I.R. PW-1 has been tutored. He submitted that though, PW-2 is a signatory to the Inquest Report, the said Exhibit Ka-3 does not mention the nature of the injuries, manner of commission of the crime and who committed it, which goes to belie the prosecution story. The postmortem report as also the testimony of PW-8 does not mention about any dragging mark on the body, whereas, the case of the prosecution is that the body was dragged. For all these reasons the learned counsel for appellants submitted that the prosecution story is doubtful and learned Court below has erred in convicting and sentencing the appellants.

In response Sri Umesh Verma, learned A.G.A. submitted that the appellants have not been charged with Section 34 IPC nor they have been convicted thereunder. They could always be convicted for individual separate offence and this by itself does not make the prosecution's case weak. Initially, the F.I.R. was lodged under Section 302 IPC and 3(2)(v) of SC/ST Act, but, during investigation Section 504 and 506 IPC were also added. Consequent to recovery of the weapon used in crime, a separate F.I.R. was lodged under Section 4/25 of the Arms Act. The F.I.R. was not ante dated. Nothing was done by the defence in cross examination to establish that the F.I.R. was ante dated. The correction in the inquest report as to the timing is only with regard to the minutes and not the hours, therefore, the contention of the appellants in this regard is of no avail. No question was put in this regard to the I.O., PW- 9, and to the informant PW-1, as to the F.I.R. being ante timed or with regard to the correction in the inquest report, in their cross examination, therefore, they can not be permitted to raise this plea at this stage. He referred to Section 137 and 138 of the Indian Evidence Act, 1872 in this regard. According to him, there was no contradiction in the statement of PW- 1. Nowhere has he stated that body was dragged. What was stated by him was that the appellants caught hold the deceased, shut his mouth and took him inside towards the boundary and there is no mention of the deceased being dragged. Totality of testimony of a witness is to be appreciated and not a sentence here and a sentence there in piecemeal. In cross examination the defence was not able to impeach the credibility of PW-1 with reference to his antecedents or character or by pointing any contradictions having a material adverse bearing on the prosecution case. He referred to Section 146 of the Indian Evidence Act, 1872. He submitted that PW-1's testimony contained a natural and truthful narration of facts which was itself sufficient to prove the guilt of the appellants, independent of the other witnesses, however, in this case there was plurality of evidence in the form of two other eye-witness PW-2 and PW-4. Except for slight exaggeration in the statement of PW-4 which was quite natural considering the fact that her statement was being recorded before the Court after four years, the narration given by her corroborates the testimony of PW-1. On a conjoint reading of testimony of PW-1 and PW-4 it comes out that the house of PW-4 is situated in front of the damaged boundary wall towards which the deceased was taken by the appellants and ultimately murdered, therefore, it is quite natural that on hearing the shouts of PW-1, PW-4, who, was residing near the place of crime, would rush out and respond to the same and there is nothing unnatural in this regard. As regards testimony of DW-1 and DW- 2 the same only establishes allotment of house in the occupation of V.C. Ghosh the husband of Shivani Ghosh (PW-4) bearing House No. 56-J that is the house situated in front of the damaged boundary wall, to one Data Deen, Fitter, and that on paper it was shown that the possession had been taken but there is nothing to prove the actual taking over of possession by Data Deen. It is everyday experience that such transaction place on paper but actual possession is allowed to be retained, therefore, unless actual taking over of possession of Data Deen was proved, the presence of Shivani Ghosh can not be doubted merely on the testimony of DW-1 and DW- 2. It has come in the testimony of PW- 1 that the appellants threw the deceased on the ground which tallies with injury no. 9 i.e. abraided contusion. The other eight injuries are incise wounds which are caused by ''knife' and ''Banka'. PW- 8 has opined that these injuries could be caused by one weapon, therefore, the medical report and the medical opinion corroborate the testimony of PW- 1 which is sufficient to hold the appellants' guilty. The testimony of PW-1 is truthful as he has fairly mentioned the absence of his brother at home for the past one month. Only 90 ml. liquid was found in the stomach which corroborates PW-1's testimony that the deceased had not even taken tea on the said date. PW-1 had described the incident, place of crime, the manner of commission of crime naturally and truthfully. No contradictions in any statement made earlier or in the F.I.R. viz-a-viz the statement made during trial was put to the witness, specially PW-1, though, this opportunity was available in terms of Section 145 and 157 of the Indian Evidence Act, 1872. Merely, because PW-4 was a witness in other cases, one of which was lodged by her and the other was of theft while in respect to the third case the details are not available, she can not be termed as a professional witness. There is nothing on record to show that she was a professional witness. Testimony of PW-4 is also reliable and corroborated by the testimony of PW-1. The Inquest Report is not required to mention details of crime or accused. Non mentioning of these details has no bearing on the prosecution story, as, it is beyond the scope of Inquest Report prepared under Section 174 Cr.P.C. The medical examination and postmortem report is not a safe mode for determining the time of the occurrence. It is not always the determinative test. It will require due corroboration from other evidence. The fact that the Serologist found the blood on the blood stained soil and the knife as disintegrated by itself does not belie the prosecution story as, considering the nature of the place of crime where coal was being dumped earlier, it is possible, but, it has no major adverse bearing on the prosecution case. Even in the absence of a favourable forensic report the credible eye-witness account in this case can not be discarded. Sri Verma relied upon the decisions reported in 1991 JIC 794 (SC); State of Rajasthan Vs. Tejaram and Ors., (2012) 6 SCC 204; Jitender Kumar Vs. State of Haryana, 2008 Crl. L.J. 3602; Mahesh Janardhan Gonnade Vs. State of Maharastra, 2011 Crl. L.J. 306; Brahm Swaroop and Anr. Vs. State of U.P.

Sri Jyotindra Mishra, learned Senior Counsel further argued that the postmortem report shows that both the chambers of the heart were empty, therefore, the deceased must have been in a pool of blood, as such, the fact that blood was found to be disintegrated on examination of blood stained soil establishes that the crime was not committed at the place alleged and the sample was collected from otherwise.

The blood stained soil collected from the scene of crime were sent for forensic examination but the report could not determine the origin of the soil and it states that the sample was disintegrated. Likewise the forensic report speaks of the blood on the knife alleged to have been recovered at the pointing of appellant Phool Chandra Yadav as being disintegrated, therefore, the forensic reports are of no help to the prosecution. Everything thus boils down to the three eye-witnesses PW- 1, PW-2 and PW-4 and corroboration of their testimony by other evidence, especially medical evidence.

There are three eye witnessed to the crime alleged to have been committed at 7.00 a.m. on 25.11.2002. One eye-witness is the son of the deceased who at that time was about 17 years of age. He is PW-1. He has deposed that he resides in Mawaiya Railway Colony where the incident took place. One year prior to the date of the crime his brother Abhilash had run away with the sister of Phool Chandra Yadav- the accused. Phool Chandra Yadav had lodged an F.I.R. in this regard. His brother had appeared in the said case and was enlarged on bail after 24-25 days. One month prior to the date of crime Manju the sister of Phool Chandra Yadav again ran away with his brother Abhilash, on account of which Phool Chandra Yadav bore ill will towards his family. Thereafter, he has narrated the events which took place on 25.11.2002. He has stated that about 7.00 a.m. his father- the deceased was going to catch a train at Aisbagh Railway Station for going to work at Khairabad, Sitapur. He had barely gone 30-35 meters when the accused came out of the damaged boundary of the Loco and caught hold of his father's neck from back and took him inside the boundary. Phool Chandra was carrying a ''Banka' while Vidya was carrying a ''knife' (churi). The accused threw his father and then cut his throat. This statement explains the abraded contusion on the deceased's body (injury no. 9). He went on to state that he saw this from slight distance and shouted, whereupon, Shivani Ghosh (PW-4) and Santosh Kumar (PW-2) came. He then stated that all three of them moved forward to save the deceased. The accused started threatening to kill them and hurled abuses and doing so ran away towards the water tank. His father's neck had been cut in half. He had died. He had himself written the ''Rapat Tehrir' (written complaint) about the incident and had signed and given it at the police station. He identified the ''Rapat Tehrir' Exhibit Ka-1 as having been written and signed by him.

In the cross examination he has stated that Santosh Kumar was the brother of deceased and he resided in House No. 546/86 Akbar Nagar, Badshah Nagar. He was as an employee in the Railways at Charbagh, Lucknow. He was a Gaurd at that time and used to live in the Cabin. He has further stated in the cross examination on 26.02.2004 that he did not study in any school but had submitted private form in Maudhi Inter College. He was at Lucknow on 24.11.2002. Even in the night he was at his house. On 24.11.2002 his uncle (Santosh Kumar), his mother and younger sister Pritma and his father were in the house in the night. His brother Abhilash was not at the house for past one month. His house comprised of one room, one kitchen, one varandah, one latrine, one bathroom and gallery. In his this testimony PW-1 has spoken of presence of his uncle Santosh Kumar in his house in the night of 24.11.2002. The incident occurred in the morning of 25.11.2002. It is also clear that in one room he, his father, his brother, his wife, his mother and younger sister i.e. six persons, used to reside but on the fateful day his brother was not there. He was absent for the past one month. His testimony does not mention the absence of Bhabhi Manju. It is quite possible she was also not present as her husband was away for past one month, but, even if she was present the fact is that out of six persons living in the room one was absent and the room could accommodate six persons who used to live there.

PW- 1 has also spoken about the presence of PW-4 Shivani Ghosh. In the testimony of PW-4 it has come that her house is situated in front of the damaged boundary wall. PW- 1 has also stated in his testimony that the appellants came out of the Loco Compound of the boundary, caught hold of his father and took him inside the boundary, therefore, the location of House No. 56-J which was being occupied by V.C. Ghosh- the husband of Shivani Ghosh, as stated by these witnesses, and the narration of events by PW-1 and PW- 4 show the presence of PW- 4 at the time and place of crime, who, on hearing the shouts of PW-1, responded along with PW-2- Santosh Kumar whose presence is also mentioned by the PW-1 in his testimony. The presence of these two eye witnesses is mentioned in the F.I.R. also.

It is worthwhile to mention that Sudarshan Ghosh the son of V.C. Ghosh and Shivani Ghosh, is one of the signatories to the Inquest Report.

PW-1 has stated that he wrote the ''tehrir' in the room of his house at about 9.30-10 a.m. and thereafter went to the Police Station which was about one and half kilometers away and gave it to the police personnel at Police Station- Alambagh, therefore, the F.I.R. was lodged at 10.45 a.m. When an unnatural incident such as the one which took place at 7.00 a.m. on 25.11.2002, that too in such a gruesome manner as detailed by PW-1, takes place, it is quite natural that the son of the deceased and other family members and neighbours would be in a disturbed frame of mind. There would be brooding, crying, a feeling of helplessness and the mind itself would be not focused as to what should be done and they would take sometime to gather themselves. In these circumstances it can not be said that there was inordinate delay in lodging the F.I.R. nor that the time gap was such as to facilitate cooking up of a story and planting of eye witnesses.

From the above discussion, the presence of PW-4 and PW-2 near the place of crime, is proved. The narration of events by the PW-1 is natural and truthful. He has fairly mentioned that his brother was not living in the house for the past one month. He has fairly mentioned the details of the house as to the number of living room etc. He has narrated the commission of the crime in a sufficiently detailed manner. He has also mentioned that he was going to fetch milk in a ''dolchi'. He has also mentioned that when he reached the body of the deceased he found the throat of his father, cut, that he was trembling ''QM+QM+k jgk Fkk'. He waited there for 10 minutes but did not do anything. The appellants- accused ran away towards the water tank hurling abuses. After the accused had run away several residents gathered. He also stated that the trembling (QM+QM+kuk) of his father's body ebbed only then he left the place of crime. He has also mentioned that his brother Abhilash was in jail in connection with running away with the sister of Phool Chandra Yadav. He has also mentioned about the imprisonment of his brother in another case of murder of one Dinesh who also resided in the same colony, therefore, he has been truthful in mentioning these facts and there does not appear to be any inconsistencies, contradictions, improvements or embellishments in his testimony which could cause any major dent in the prosecution story. In the cross examination he has not been confronted with any such contradiction or inconsistency. He has stood his ground in the cross examination and has narrated the events just as stated by him in examination in Chief and as was recorded in the F.I.R. He has also truthfully stated that his father used to leave the house everyday at about quarter to four in the morning for duty and has not tried to make any false statement so as to justify the crime at 7.00 a.m. He has further stated that his father had woken up at 6.00 a.m. and had left the house prior to 7.00 a.m. He did not even have tea which also appears to be truthful as in the postmortem report only 90 ml. liquid has been found in the stomach, which is not brown liquid. Further more, in the recovery memo Exhibit Ka-2 apart from the bag which was recovered by the side of the deceased body, five Roti (Khan) and ''Sabhzi Dibba' have also been recovered. The recovery memo has been signed by Santosh Kumar, Awadhesh Yadav etc. and some police men and has been proved. He has also stated that he had disclosed the presence of his uncle Santosh Kumar at the scene of crime though he had not mentioned that he was residing with us in our house, which is obviously a reference to the statement under Section 161 Cr.P.C.

It is not out of place to mention that in the trial Court judgment the date of recording of statement of PW-1, before it, is incorrectly mentioned as 29.10.2007. As per original lower court record the testimony of PW-1 was recorded on 29.10.2003 when he was about 18 years of age. It was completed by the trial Court on 26.02.2004. The date 29.10.2003, was incorrectly presented before the trial Court as 29.10.2007 and based on this an argument was advanced that PW-1 was only 12-13 years of age at the time of commission of the crime, whereas, in fact he was 17 years of age, as, the crime was committed on 25.11.2002 i.e. barely a year prior to 29.10.2003.

PW-2 another eye witness, has stated that Phool Chandra Yadav- the appellant, lived in Loco Colony. He had lodged a criminal case against Abhilash the other son of the deceased in which Abhilash had been sent to Jail. He had mediated between parties in the said matter. After sometime Phool Chandra changed his quarter and married his sister elsewhere in his village. At the time of said incident he was residing with his brother, Late Ram Bali in the Loco Colony. In October, 2002 Manju, the sister of Phool Chandra came to the house of Phool Chandra from her-in-law's house and in October, 2002 she again ran away with Abhilash. When the second incident occurred Phool Chandra threatened his brother Late Ram Bali. Ram Bali informed him about this threat. Prior to murder of Ram Bali, he (PW-2), had been residing with him for the past 8-10 days. His brother used to wake up at about 3.30 - 3.45 a.m. to go to Khairabad by Rail. The incident of murder of his brother was of the morning of 25.11.2002. His brother woke up late on said date and left the house at about 6.30-7.00 a.m. After him, his nephew (PW-1) also went out of the house to fetch milk. He (PW-2) was strolling outside the house. His nephew (PW-1) shouted loudly and raised an alam when he (PW-2) and others of the colony ran towards the sound of shouting and reached there. His nephew ran towards the quarter and informed him by shouting that Phool Chandra Yadav and Vidya had taken his father towards the broken boundary wall and the ''Khandhar' (ruins) therein. He has stated that they ran towards the boundary and saw from a distance that the appellants were striking at the throat of his brother Ram Bali after throwing him on the ground. Phool Chandra was striking with the ''Banka' and Vidya was striking with the knife. We ran towards them, shouting, when, Phool Chandra and Vidya used caste related abuse and said that if they had not done it (which was a reference to deceased's son running away with his sister) this situation (killing of deceased) would not have arisen and that he (PW-2) would also meet the same fate. On hearing the outcry, others also came. The accused carrying their weapons ran towards the water tank. When he i.e. PW- 2 reached the seen of crime they found that half of the throat of Ram Bali had been cut and he died within 2-3 minutes. He has also stated that inquest was conducted in his presence. He identified the accused Phool Chandra and Vidya in the Court as the one who had murdered his brother.

In the cross examination he has stated that since January, 2002 he had started residing in his house at Faizabad Road which is situated in Akbar Nagar. He has stated that on the date of incident he was working at Charbagh Railway Station. On the date of incident his duty was from 8.00 a.m. till 4.00 p.m. The place of his work was at about 8-9 kilometers from his residence at Akbar Nagar. The house of his brother Ram Bali was barely 2-2½ kilometers from place of his (PW-2) work. He has stated that Daroga had come to the place of crime at about 10.30 a.m. when his nephew (PW-1) was not present, as, he had gone to lodge the F.I.R. By the time police came his brother had died. He had told the Daroga that his brother had been murdered by Phool Chandra and Vidya. He had read the Panchayatnama and then signed it. He has also mentioned in the cross examination that a day prior to the date of incident his brother had returned from duty at 7.00 p.m. He has also stated that when he reached the scene of crime his brother had not died. Half of his throat had been cut and he was breathing with pain. After he returned from chasing the accused he found his brother dead. The place from where he had seen the crime and the place of crime were about 30-35 paces away. Even in cross examination he has stated that on the date of incident when his nephew (PW- 1) shouted he was strolling outside the house. The place where he was strolling is 60-70 paces away from the place of crime. The place of crime could not be seen from where he was strolling because there was a boundary wall in between. He has stated that PW-1 had written the ''tehrir' at his house and he had seen him writing the same. He has emphatically stated that on hearing the shouting of his nephew (PW-1) he reached the sight of crime and saw Phool Chandra and Vidya murdering his brother. He has fairly stated that he had not seen Phool Chandra and Vidya taking his brother into the compound with the scruff of his neck. When his nephew shouted he was 35 meters away. He had come running and shouting towards him, then he ran towards scene of crime. He had seen PW-1 leaving the house with milk can at that time. He had told the Daroga that when he had reached near his brother, he saw, he was breathing and trembling. He has also stated that he had mentioned this fact to Daroga, (which is obviously with reference to the statement under Section 161 Cr.P.C.) and if the same has not been recorded by him, he is unable to give the reason for the same. He has also stated that he had informed the Daroga who recorded the statement that the accused had mentioned his caste and shouted that if they had not done so this incident would not have happened which was obviously a reference to the son of the deceased running away with the sister of the accused Phool Chandra Yadav and they belonging to the Scheduled Caste while accused did not belong to said Caste.

PW - 3 a colleague of the deceased who resides 1½ kilometers from scene of crime is the witness of recovery memo, panchayatnama and memo of the recovery of blood stained soil etc. He has admitted his signatures on these documents.

PW-4 - Shivani Ghosh is an eye-witness. She has stated in her examination in chief that she was walking outside her house at 7.00 a.m. on 25.11.2002 when she heard PW-1 shouting for help and saying that the accused Phool Chandra and Vidya were taking away his father and she ran along with him and his uncle PW-2, when she saw the accused taking the deceased. She has stated that both the accused took the deceased to a spot in front of her house where the broken boundary wall exists, where, earlier, coal used to be dumped and the ashes of coal were lying earlier and there Phool Chandra Yadav using the ''Banka' and Vidya using the knife cut the throat of Ram Bali. The deceased died during the cutting of his throat by both the accused. She saw both the accused cutting the throat of deceased with her own eyes. When she tried to save the deceased the accused threatened her to go away lest they would cut her also, on account of which, they i.e. PW-4, PW-1 and PW-2, could not save the deceased, out of fear. She also spoke of threat being extended by the accused to her on 18.09.2006 to keep away from deposing in the case.

In cross examination PW-4 stated that her house was situated 50 feet from the house of the deceased. Main door of her house opened towards the North. Her husband was an employee in the railway and her family resided in the railway colony, on rent. On the day of the incident she, her husband Virendra Chandra Ghosh and son Sudarshan Ghosh resided together in the same colony. Her son Sudarshan Ghosh was a witness to the panchayatnama. Her husband and son had gone to take a walk at the time of the incident. She has further stated that she went to one Babboo to inform him about the incident and when she went to police station, the police asked her to see the body and that they would talk to Babboo and came at the scene of crime whereupon she returned near the body. After half an hour she had reached near the body. The police came at about 7.30 a.m. and recording of statement of witnesses and preparing the panchayatnama was started at about 7.30 a.m. The police had reached at about 7.10 a.m. Thereafter, she said that she did not remember the time correctly. Learned counsel for appellants laid great emphasis on the aforesaid statement as to the time when police reached the spot so as to try to contradict the testimony of PW-1 and PW- 2, however, we should not forget that after making such statement she qualified it by saying that she did not remember the time correctly as to when the police came, therefore, this by itself does not cause any material prejudice to the prosecution story, especially as, the credibility of PW-1 has not been breached by the defence in any manner. In this context it needs to be kept in mind that PW- 2 has stated that when the Sub-Inspector came, PW- 1 had gone to Police Station to lodge the F.I.R. PW-1 had written the ''Tehrir' at 09.30-10.00 a.m. as has come in testimony of PW-1 and PW-2, after which, he went to police station, then the police came to scene of crime, when PW-1 had gone to Police Station. Therefore there is no contradiction or improbability in this regard.

She has gone on to state that both the accused were behind Ram Bali and she had seen only them and nobody else. At first instance there was a distance of about 60-70 feet between her and the deceased. The accused were at a distance of about 50 feet from her. Then she has stated about the cases in which she was a witness, one of which a was murder case, but, the details thereof have not been mentioned by her. She had lodged a case under Section 376, 452, 504 I.P.C. at Police Station- Krishna Nagar against certain person where testimony was yet to be recorded. She has mentioned about the murder of a daughter of a Zamadar in which the police had made her as a witness. She stated that at the time of commission of crime, she, the two accused and PW-2 alone were present. Much emphasis was laid by learned counsel for appellants on this statement to contend that according to her even PW-1 was not present, but, we are not persuaded to accept this argument when we read the testimony of PW- 4 in totality wherein she has clearly mentioned about the presence of PW-1, as already discussed hereinabove.

She has also stated that her son Sudarshan and Baboo were the first to inform the police through P.C.O. This was also emphasized by learned counsel for the appellants to contend that if it was so, then, why the F.I.R. was lodged at 10.45 a.m. This argument also does not cut much eyes in view of testimony of PW- 1 and it does not materially prejudice the prosecution story nor the credibility of the eye-witness PW-1. The call was not made by her but by the said persons, obviously she was informed accordingly.

She has gone on to state that her statement was recorded at 11-12 during day time on the date of the incident. In this regard learned counsel for appellants invited attention of the Court to the Statement of the I.O. PW- 9 to contradict this fact as he has stated about recording her statement subsequently. Name of Shivani Ghosh was mentioned in the F.I.R. lodged on 25.11.2002, therefore, if the I.O. recorded her statement subsequently as stated by him, it was at best a lapse on his part which does not prejudice the prosecution story. PW-9 has also stated that on 20.12.2002 investigation was transferred to C.O., Alambagh. But merely because of this the credibility of the witness is not adversely affected nor does any benefit accrue to the appellants herein on this count.

She has also stated in her cross examination about the deceased being dragged resulting in injuries to him. This statement has also been relied by learned counsel for appellants to contend that no such injuries were found on the body of the deceased as per the postmortem report and this has been specifically stated by PW-8, who had conducted the autopsy, therefore, he says that the testimony of PW-4 is false and she is a professional witness. This is a minor and insignificant discrepancy.

It was also his contention that she being a witness in several criminal cases and having admitted in her cross examination that she had deposed in a case on the saying of the Police makes her testimony unreliable. We have taken note of this aspect. As regards her statement towards the end of the cross examination that ";g lgh gS fd eSus ,d eqdn~nes es iqfyl ds dgus ls xokgh nh gSA", in the very preceding line she has stated that it is incorrect to say that the police whenever it wants, it makes her a witness in a criminal case. She has also denied being a professional witness. Out of the cases mentioned in the cross examination, the details of the murder case are not known. There is nothing on record to show whether in any such cases there is any finding of the concerned Court that she has falsely deposed before him or that she was not present at the time of commission of crime. The nature of her role as a witness in the said case is also not known. As regards the case of rape she had herself filed it, but, merely because of this it can not be said that she is a professional witness. She has also mentioned about being a witness in the murder of daughter of a Zamadar but again the details of the case and nature of her testimony, if any, or for that matter of the finding of the Court in this regard is not available before this Court. The only thing is that towards the ends of the cross examination she has deposed that on the saying of the police she had deposed in a case but it is not clear from the cross examination as to which case is being referred to. Moreover, it is possible that she may be a witness in such case and as witnesses do not readily come forward to depose, the police may have asked her whether she would depose and she may have agreed. We can not loose sight of the fact that it is an admitted position that she along with her family were residing in house No. 53-J in the same colony where the murder is said to have been committed and their house was only at a little distance from the damaged boundary wall in the compound of which the deceased was forcibly taken by the accused as per the deposition of PW-1 also, therefore, merely because she may have been a witness in some cases does not by itself make her a professional witness or make her testimony in this case unreliable. One could understood if she was not a resident of this colony then her presence could be doubted but the fact that she was residing barely 50 feet away from the deceased's house makes her presence probable in this case. Even otherwise. we have already opined that the testimony of PW-1 who was aged about 17 years at the time of incident and about 18 years at the time his testimony was recorded, is unimpeached and it by itself is sufficient to establish to guilt of the accused, especially as, it is corroborated by medical evidence on record.

We may at this very stage point out that the appellants' counsel has invited our attention to the testimony of DW-1 and DW-2 who are officers/employee of the North Eastern Railway at Lucknow. These defence witnesses were examined on the application of the defence and they had produced certain documents, as already noted. DW-1 Dhrenderda Pratap Singh, Senior Section Engineer, NE Railway, Aishbagh, Lucknow deposed in examination-in-chief that he had brought a house allotment register wherein there was an entry in the name of Sri V.C. Ghosh (husband of PW-4) at Serial No. 12 of Page 39 of the said register regarding allotment as against House No. 53-J, meaning thereby, his name was entered against the said house. He stated that the date of allotment of the house to Sri Ghosh is not mentioned in the register nor is it mentioned that when he handed over the possession of the said house. The register was of the period 2002 to 2007. DW-2 Ezaz Ahmad, Technician in the office of Senior Section Engineer, Carriage Loco Samadi, North Eastern Railway Junction, Charbagh, Lucknow also deposed about an original register which he had brought. He testified about an order dated 15.05.2002 being available in the register which was before him, according to which, the house of Sri V.C. Ghosh, Fitter-II, 53-J Type-I, Loco Shed Colony was allotted to Sri Data Deen, Fitter vide order dated 15.05.2002. This order bore the signature of Senior Engineer, C & W N.E. Rly. He also stated that the said register contained an entry about Sri V.C. Ghosh handing over charge to Date Deen, Fitter, on 22.05.2002. The application bore counter signature of Sri V.C. Ghosh and Data Deen as also Senior Engineer, C & W N.E. Rly. In this regard we categorically asked the learned counsel for appellants as to whether PW-4 was cross examined in this regard and whether she was confronted with this aspect of the matter, the learned counsel for appellants fairly submitted that this was not done. We have perused the cross examination of PW-4 by the appellants and we do not find any suggestion therein as regards she or her family having left the house bearing No. 53-J on account of allotment of the same to Sri Data Deen. The least that was required to be done by the appellants was to confront the PW-4 on the aforesaid aspect and try to dent her credibility and reliability on this count but this has not been done. As stated earlier this evidence was led by the defence after the deposition of PW-4. The fact that there was some documentary proof of allotment of house of husband of PW-4 to Sri Data Deen and also giving the possession thereof by itself does not establish the actual giving of possession by Sri Ghosh to Sri Data Deen. It sometimes happens that even after such handing over of charge/possession on paper the earlier occupant continues for some reason or the other. The PW-4 was required to be confronted in this regard only then the truth would have come out. She has stated that she was residing in the said house in the Loco Colony on rent along with her family. In the absence of she being cross examined in this regard no benefit can accrue to the appellants based on the testimony of DW-1 and DW-2 nor is the prosecution case belied. We also asked the learned counsel for appellants as to whether Sri Ghosh had been allotted some other house and whether there was any proof as to when he had taken possession of other house, if it was so, he could not give any reply in this regard. The defence could have also summoned Data Deen, Fitter to establish that prior to 25.11.2002 the actual possession of the house had been handed over to him, but, this was not done.

PW- 5 prepared the Panchayatnama on direction of Circle Officer/ Investigating Officer Sri Sarvesh Kumar Rana. He has collected the sample of blood stained soil and sealed it. He proved the said Exhibit Ka-3 as also the recovery memo prepared in this regard. He had also prepared recovery memo on the direction of Circle Officer who was the Investigating Officer, which is Exhibit Ka-2 and proved the same. He also proved Exhibit Ka-4. In his cross examination he has stated that when he went to prepare Inquest Report, he had met PW-4. He has explained the cutting in the time on the F.I.R. as it was not legible.

PW-6 is witness to the recovery of the weapon (knife) allegedly used in the crime. He has stated that the knife recovered was not before him at the time of his testimony and that no ''Banka' had been recovered. He has, however, proved recovery of the weapon (knife) and Exhibit Ka-7 i.e. recovery memo pertaining to recovery of weapon and the disclosure statement made by Phool Chandra Yadav as recorded in the recovery memo Exhibit Ka-7. He has categorically stated that the Investigatino Officer, C.O. took him and S.I. Ganesh Singh from the Chowki and interrogated Phool Chandra Yadav for 5-7 minutes when he (Phool Chandra Yadav) said he would get the weapon used in crime recovered and then it was recovered on his poining.

PW-7 is also a witness to the disclosure statement by Phool Chandra Yadav and recovery of the weapon allegedly used in the crime. He has proved Exhibit Ka-7 the recovery memo in this regard. He has stated that Phool Chandra Yadav, on being taken on remand, had informed that the knife which had been used by him and Vidya to murder the deceased could be recovered at his pointing. The recovery memo proved by him also mentions the disclosure statement by accused Phool Chandra Yadav when in custody of police after remand. PW-7's testimony corroborates the version of PW- 6 in this regard. He has stated that no member of public agreed to be a witness to the recovery. He has also stated that the knife, which had been recovered, was not before him i.e. at the time of his testimony. He has however proved the disclosure statement and recovery of the weapon on the pointing of Phool Chandra Yadav the accused.

PW-8 is a Autopsy Surgeon who conducted the postmortem of the deceased's body. He has deposed that he had received the body of the deceased along with 7 police papers on 26.11.2002 from Constable Ram Raj Tiwari and Constable Shankar Lal, Police Station- Alambagh, Lucknow who had identified the body of the deceased. He has narrated the injuries which he detected on the body. He has proved the postmortem report (Exhibit Ka-8) and supported the same, as also, the prosecution story. He has opined that the death of the deceased may have taken place at about 7.00 a.m. on 25.11.2002. In the cross examination he has stated that the death of the deceased could have occurred 4 hours prior or later to the time mentioned by him. Injury No. 9 was not on account of dragging the body of deceased. Deceased must have eaten 6-7 hours prior to his death. He has stated that the deceased had not defecated prior to his death. There was no injury of dragging on his body. His testimony supports the deposition of PW-1 as regards the weapon used and the manner of committing the crime by splitting of throat. He has stated that the injuries are such as could be inflicted by a ''Banka' and/or knife i.e. the weapons seen by eye witnesses as used by appellants for committing the crime. It is not clear as to whether the knife recovered was shown to the doctor, but, even if it was not as stated by appellants' counsel, in view of PW-8's statement as aforesaid it does not prejudice the prosecution story.. Thus, ocular evidence in the case in support of prosecution story, is corroborated and supported by medical evidence and opinion of the Doctor PW-8.

PW- 9 is the Investigating Officer Sarvesh Kumar Rana. He has deposed about visiting the scene of crime, preparing the site plan, getting recovery memos prepared and getting the statements of witnesses recorded, sending the blood stained soil for forensic examination. He has stated that he recorded the statement of the accused Phool Chandra Yadav in District Jail, Lucknow on 05.12.2002 with permission of C.J.M., Lucknow. On 12.12.2002 he moved an application before C.J.M., Lucknow for police custody remand which was granted for 24 hours on same date. He took the accused as per his statement and discovered/recovered the knife used in committing the crime from the place where the accused took him, at his pointing. A recovery memo was prepared by S.I. Ganesh Singh which is Exhibit Ka-7. He proved his signatures on it. He has proved recovery of weapon used in crime at the pointing of the accused. The testimony of PW-6, PW-7 and PW-9 proved the disclosure statement of accused Phool Chandra Yadav in police custody as mentioned/recorded in the Recovery Memo exhibit Ka-7, as also the consequential recovery of the knife used in commission of crime in terms of Section 27 of the Evidence Act.

In the cross examination he stated that he had not mentioned in the case diary as to when he had recorded the statement of Shivani Ghosh (under Section 161 Cr.P.C.). He said that may be he had recorded it in his office. He had not inquired about the address of Shivani Ghosh. He had no knowledge about other cases in which she may have deposed or that she was a professional witness. He said that he did not find any marks of dragging on the body of the deceased. He has stated that he had not recorded the statement of PW-2 on 25.11.2002. Name of PW-2 was there in the Panchnama. He denied that the F.I.R. was lodged after preparing the Panchayatnama. He stated that it was not in his information that the house of Shivani Ghosh had been allotted to some Data Deen at the time of incident. He has denied the suggestion that Shivani Ghose and her husband were not residing in the Railway quarter at the time of the incident. No member of Public was prepared to be a witness at the time of recovery of the weapon used in crime. He denied making false recovery of weapon. He has stated that he had recorded the statement of PW-4 on 19.12.2002. He has also stated that on 20.12.2002 Investigation was transferred to C.O. Alambagh.

As regards the contention of learned counsel for appellants that the delay in lodging of F.I.R. when the police station was situated barely one and half kilometers away creates a doubt that the intervening period of two hours 45 minutes was used to cook up a false story, plant eye witnesses and to falsely implicate the appellants- accused merely on a hunch that they had made committed the crime considering the back ground of animosity, even at the cost of repetition, as this aspect has already been dealt with by us earlier, we may emphasis that when a heinous crime such as one committed in this case takes place it is quite natural for the family members, especially a young son (17 years) such as PW-1 as also the neighbours to get disturbed to an extent that they may not know what to do. In fact the immediate response would be one of despondency, sadness mental anxiety so as to virtually immobilize them. PW-1 has already mentioned the fact that he wrote the ''rapat tehrir' at about 9.30-10.00 a.m. in the house. Thereafter, he went to the police station and the F.I.R. was lodged at 10.45 a.m. He has proved the F.I.R. as being the one recorded on the basis of his written information. PW-2 has stated that when the Sub-Inspector had come PW-1 was not present, he had gone to the Police Station. The delay is not such so as to belie the prosecution story in its entirety. This contention is thus not acceptable.

Inquest report is not by itself a substantive piece of evidence. It, nevertheless, mentions the condition of the body, nature of injuries, prima facie possible cause of death. The name of accused is not required to be mentioned in it as per Section 174 Cr.P.C. nor is there any such column therein. Reference may be made in this regard to the dictum of the Supreme Court in the case of Brahm Swaroop (supra) (Paragraph 7, 8, 9, 10) wherein a similar plea was rejected.

On an appreciation of deposition of PW-1 eye witness who was about 17 years of age on the date of commission of crime, the narration of events, especially, the manner in which the crime was committed by the appellants, the description of location where the crime was committed, his presence at the sight of crime is not doubtful. The incident happened near the house of the deceased. It was natural for son of the deceased to be at the house as he was student but was not attending regular classes as he had filled up a private form, as stated by him. There is nothing unnatural in his contention that his father had left the house and thereafter he also left to fetch milk as this is a normal routine in the morning. No major contradiction or inconsistency could be brought out by the defence in his cross examination, as already stated. The defence has not been able to impeach his credibility in any manner nor to create any doubt about his presence in the house in the morning of 25.11.2002 and thereafter at the scene of crime. He has seen the commission of crime with his own eyes and narrated the same vividly. Medical opinion of PW-8 and the postmortem report (Exhibit Ka-8) have corroborated the version of PW-1 as regards the injuries which could be inflicted from the weapons seen by the PW-1 as being used i.e. ''Banka' and knife. Out of 9 injuries 8 are incise wounds which can be caused by ''Banka' and/or knife. Injury no. 4 establishes cutting of throat of deceased. Internal examination of opening of body of deceased also supports the injuries having been afflicted as mentioned by PW-1 with ''Banka' and/or knife. Cause and reason of death is mentioned as - Death is due to shock and haemorrhage as result of Antimortem cut throat injury. Thus, PW-1's testimony is supported by medical evidence.

As both the Appellants- accused resided in the same colony, therefore, PW- 1 was able to identify them while they were committing the crime. The scene of crime is nearby house of the deceased. PW-1's narration of events that he was going to fetch milk when he saw commission of the crime, is natural. Merely because the ''Banka' was not recovered or blood on the knife, which was recovered at the pointing of Phool Chandra Yadav, is mentioned in the forensic report as ''disintegrated' and merely on account of failure of forensic expert to ascertain its origin or for that matter report of similar disintegration of blood sample on the blood stained soil, as has been observed by the expert, it does not belie the prosecution story in view of ocular testimony of PW-1 which is corroborated by medical evidence. Apart from the injuries, the fact that 90 ml. liquid alone was found in stomach of the deceased shows that he had not eaten anything. The fact that it was not brown liquid supports the version of PW-1 i.e. his father did not even have tea in the morning. He has fairly stated that his father used to wake up every day at 3.30-3.45 a.m. to go for work, but, on that date he woke up at 6.00 a.m. and left prior to 700 a.m. when the crime was committed which is quite probable considering it was winter season and the fact that five ''Rotis' and a vegetable box was recovered from the scene of crime along with a bag and certain other articles. Possibly, as the deceased had woken up late he rushed for work without eating anything which explains the empty stomach. Presence of digested food in small intestine and faecal matter in large intestine would be for various reasons such as constipation or the hurry to reach his work place as duty started at 7.30 a.m. and he was already late. This by itself, as suggested by learned counsel appellants, does not create any doubt regarding the time and place of crime considering the totality of events, especially, credible ocular evidence of PW-1. These aspects have also been dealt with by us in the earlier part of the judgment.

Though, in a case based on direct evidence motive may not have much relevance, but, one can not loose sight of the animosity between the parties on account of Phool Chandra Yadav's sister having run away with the deceased's son who belonged to schedule caste which gave motive to Phool Chandra Yadav the accused, to commit the crime. As regards contention of appellants' counsel that the deceased was murdered much earlier than 7.00 a.m. as everyday he used to leave his house about 3.30-3.45 a.m. and nobody saw the crime being committed, but when it was detected subsequently, the appellants were implicated falsely on account of the earlier enmity, especially as, in view of the statement of PW-2 the said dispute had been got amicably settled by him which is also indicative of the fact that the appellants did not have any motive in the matter and that the delay of about two hours forty five minutes in lodging the F.I.R. is on account of this reason, on a careful perusal of PW-2 testimony we find that he had mediated when for the first time Abhilash had run away with sister of accused Phool Chandra Yadav after Abhilash had been jailed, but, thereafter she again ran away with Abhilash and after this second incident the accused Phool Chandra Yadav had threatened the deceased. There was no mediation after the second incident, thus the contention is misconceived. Moreover, the plea of false implication does not explain the allegations against Vidya, the co-accused. Obviously PW-1 etc. saw him committing the crime and named him, as, the deceased's family did not have any enmity with Vidya. There is nothing unnatural about the presence of PW-1 at the time and place of the crime. Moreover because the accused shifted residence elsewhere this does not mean that the embers of perceived humiliation and revenge on account of his sister running away with Abhilash, a Scheduled Case had subsided. This is also evident from the utterance attributed to him by PW-2 referring to the incident of such running away, using a caste slur and saying that if it had not happened i.e. running away of his sister, this situation i.e. killing of the deceased, would not have happened. In any case there are credible eye witnesses to the incident who have seen both the appellants committing the crime, therefore, motive is not that significant in the case of Vidya and it is present in the case of Phool Chandra Yadav. Vidya who also resided in the colony, was a friend of Phool Chandra Yadav.

As regards the doubt sought to be created in respect to presence of PW-2 at the scene of crime, he was brother of the deceased and his work place was only two and half kilometers away from the deceased's residence, whereas, his own residence was at 8-9 kilometers away from work place, therefore, considering this fact and the threats stated to have been extended to the deceased as per PW-2 testimony after the second incident as noticed above, and his statement that he was staying at the deceased's house for past 8/9 days, it is not improbable that PW-2 would have stayed in the house of the deceased in the night and was present there in the morning of 25.11.2002 also when he witnessed the incident as has also stated by PW-1.

A doubt was sought to be created by the learned counsel for appellants regarding PW-2's presence also on the ground of improbability of so many persons residing in one bedroom of house of the deceased. We have already dealt with this aspect earlier, nevertheless, we may reiterates that the testimony of PW-1 reveals that in the said room earlier the deceased, his wife, his daughter, PW-1 the other son and his wife used to reside, meaning thereby, 6 people used to sleep in the said room. PW-1 has stated that Abhilash Kumar was not residing there for the past one month, therefore, possibly his wife was also not residing there, though, this is not very clear, nevertheless, the fact remains that at least six people could sleep in the room and at least one, presumably two, was not available for the past one month, therefore, there was sufficient room for PW-2 to sleep therein. In this regard we pointedly asked the learned counsel for appellants as to whether in the cross examination any question had been put to PW-1 as to size of the said room, to which he replied that it has not been put. We have also perused the cross examination of PW-1 and PW-2 and do not find any such question having been put to them which could have clarified the situation, therefore, no benefit can accrue to the appellants based on this contention which is accordingly rejected.

It is well settled that it is not the quantity but quality of evidence which matters. PW-1's statement by itself is sufficient to establish the place of occurrence, commission of crime and culpable homicide amounting to murder by the appellants and it is corroborated by medical evidence. The fact that the testimony of PW-2 and PW-4 also corroborates his version, gives additional strength to the prosecution story. Defects in investigation or deficiency in Forensic examination, if any, can not help the appellants in the light of ocular evidence of eye witness PW-1 as already discussed hereinabove.

As both the appellants- accused have been assigned overtly active role in the murder of deceased, merely because Section 34 IPC was not added in the F.I.R. or in the charge framed by the trial Court, it does not make any difference, as, they can be held liable for their overacts done individually.

For all these reasons, and having gone through the judgment of the learned trial Court we do not find any error therein. In view of the above discussion, we are of the considered view that the charge of committing the offence of culpable homicide amounting to murder under Section 302 I.P.C. as also the offence punishable under Section 504 and 506 I.P.C. are proved against the appellants beyond reasonable doubt.

From the utterance made by the accused while killing the deceased and threatening the PW-1, PW-2 and PW-4 with the same fate using caste slur as is evident from the testimonies of the said witness, we are also of the view that the offence under Section 3(2)(v) of SC/ST Act, 1989 is also made out. The recovery of knife having been proved the charge of committing the offence under Section 4/25 of the Arms Act, 1925 is also proved beyond reasonable doubt.

In view of the above, we do not find any error in the judgment of the trial Court.

Both these appeals are, therefore, dismissed.

A certified copy of this judgment shall be sent to the trial Court for necessary action if any required. Lower Court record be also sent back to the Court concerned.

As the appellants are in Jail let a certified copy of this judgment be communicated to them through C.J.M. concerned, free of cost.

 (Saurabh Lavania,J.)        (Rajan Roy,J.)
 
Order Date :- 04.03.2021
 
R.K.P.