Barjor vs State Of U.P.
2021 Latest Caselaw 11322 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 1
 
Case :- CRIMINAL APPEAL No. - 124 of 1985 
 
Appellant :- Barjor 
 
Respondent :- State of U.P. 
 
Counsel for Appellant :- Brijesh Kumar Yadav 
 
Counsel for Respondent :- G.A. 
 
Hon'ble Ramesh Sinha, J.

Hon'ble Vivek Varma, J.

Ramesh Sinha, J. (Oral)

(1) Four accused persons, namely, Barjor, Satti, Nawab and Vidya were tried by V Additional Sessions Judge, Unnao in Sessions Trial No. 180 of 1994 : State Vs. Barjor and others arising out of Case Crime No. 56 of 1983, under Section 302 read with 34 of the Indian Penal Code, Police Station Auras, District Unnao. Vide judgment and order dated 28.01.1985, the V Additional Sessions Judge, Unnao convicted the accused/ appellants under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to undergo life imprisonment.

(2) Feeling aggrieved by the aforesaid judgment and order dated 28.01.1985, convict/appellant, Barjor, has preferred the instant criminal appeal under Section 374 (2) Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), whereas other three convict/appellants, Satti, Nawab and Vidya, preferred Criminal Appeal No. 129 of 1985 under Section 374 (2) of the Code of Criminal Procedure.

(3) It transpires from the record that during pendency of the aforesaid criminal appeals, co-convict/appellants, Satti, Nawab and Vidya, died, hence Criminal Appeal No.129 of 1985 was dismissed as abated by Co-ordinate Bench of this Court vide order dated 6.3.2020 passed in Criminal Appeal No. 129 of 1985. In this background, this Court proceed to decide the instant appeal on behalf of present surviving appellant-Barjor.

(4) The facts as unfolded by the prosecution, in short conspectus, are as under :-

The informant/Darshan (P.W.1) son of Lalu Yadav is the resident of Village Saidapur, Police Station Auras, District Unnao. On 03.09.1983, informant/Darshan (P.W.1), his uncles, namely, Daya Shanker (deceased) and Ram Asrey (P.W.4) had gone to the market of Village Ajgaon. In the market, Radhey Shyam, who is the son of Daya Shanker (deceased), also came from Hyderabad after schooling. Subsequently, after purchasing certain items, all of them were returning to their home. On the way, Mahaveer (P.W.7) started talking with his uncle Daya Shanker (deceased) about the field which was given to him on batai and informant-Darshan (P.W.1), his uncle Ram Asrey (P.W.4) and Radhey Shyam were proceeding a little ahead. When Daya Shanker (deceased) had reached the southern passage of the field of Babu Pasi, which is situated at village Ajigaon, convict/appellant Barjor came from behind Daya Shanker (deceased) and started beating him with lathi, whereupon Daya Shanker (deceased) holds the lathi of convict/appellant Barjor. Thereafter, informant-Darshan (P.W.1), his uncle Ram Asrey (P.W.4) and Radhey Shyam, after raising alarm, ran. In the meantime, convict/appellant Nawab armed with gun, convict/appellant Satti armed with pistol and convict/appellant Vidya armed with lathi were started running from North-East and South corner, respectively, from the field of maize. Thereafter, convict/appellants Satti and Nawab fired on the deceased (Daya Shanker), who, after sustaining injuries, fell down there and on hearing the noise of fire, informant Darshan, P.W.4-Ram Asrey and Radhey Shyam stopped there due to afraid. Then, all the convict/appellants started beating the deceased with lathis. Thereafter, on seeing the crowd, which had assembled there, the convict/appellants ran away from the spot. The deceased was a Village Pradhan in Village Saidapur and convict/appellants were residents of the same village. There was prior animosity between them because the convict/appellants had illegally taken possession of Gaon Samaj land.

(5) The informant-Darshan got the FIR scribed by Ram Vilash (P.W.5), who after scribing it read it over to him. He, thereafter, affixed his thumb impression on it and, then, proceeded to Police Station Auras, which was situated at a distance of three miles from the place of occurrence and lodged it at 06:45 p.m. at the police station Auras.

(6) The evidence of Constable Om Prakash (P.W.6) shows that on 3.9.1983 (on the date of incident), he was posted at Police Station Auras. On the basis of written report (Ext. Ka. 1) submitted by Darshan (P.W.1), a chik report (Ext. Ka.2) was prepared by him and the case was registered as Case Crime No. 75 of 1983, under Section 302 I.P.C. at police station Auras, District Unnao, which was entered in G.D. Report No.24 (Ext. Ka. 3). In the cross-examination, he deposed that Darshan (P.W.1) did not stay at Police Station in the night and he had left Police Station even before departure of the Investigating Officer.

(7) The evidence of P.W.9-S.I. Raghuraj Singh shows that he was posted at Police Station Auras on 03.09.1983. The case was registered in his presence and thereafter, he investigated it. He took the statement of Informant P.W.1-Darshan at the police station itself. He reached at the place of occurrence at 09:00 p.m. by motorcycle but due to lack of light in the night, he did not prepare panchayatnama, however, he interrogated Radhey Shayam and Ram Bilas (P.W.5) in the night. On 04.09.1983, at about 06:00 a.m., he prepared pachayatnama of the deadbody of Daya Shanker in the presence of Satyakumar, Hiralal, Bachanu, Ramadhar, Ram Singh. This panchayatnama (Ext. Ka. 5) was written by S.I. Jageshwar Singh. He also prepared challan lash (Ext. Ka.6) and photo lash (Ext. Ka.7). He, thereafter, sent the corpse of the deceased Daya Shanker in a sealed cover for post-mortem through Constable Ramesh Singh and Churamani. He also recovered kurta and towel of the deceased and sealed it under recovery memo (Ext. Ka. 10). He also recovered Potato and Guava placed near the deadbody of the deceased and sealed it under recovery memo (Ext. Ka.11). He also recovered bidi, matchbox, one rupee and fifty paise from the kurta and shoes of the deceased and sealed it under recovery memo (Ext. Ka. 12). He recovered umbrella placed near the dead body of the deceased and sealed it under recovery memo (Ext. Ka. 13). From the place of incident, he seized plain and bloodstained earth in separate containers under a recovery memo (Ext. Ka. 14). He also recovered two empty cartridges and sealed it under recovery memo (Ext. Ka.15). He inspected the place of occurrence and prepared site plan (Ext. Ka. 16). He, thereafter, interrogated Mohanlal, Kunwarpal and Bhikhari and their statements were marked as Ext. Ka 17 to Ext. Ka. 19. Thereafter, he searched the accused persons but he did not find them. Subsequently, after completion of investigation, he submitted the charge-sheet (Ext. Ka. 20) against the accused persons under Section 302 read with Section 34 of the Indian Penal Code before the Court concerned.

In his cross-examination, P.W.9-S.I. Raghuraj Singh has denied the suggestion that chik report, panchayatnama and other documents were prepared on the advice of the police. He deposed that S.I. Jageshwar Singh was in his police station. He searched the accused persons and prepared the recovery memo. He recognized the written and signature of S.I. Jageshwar Singh. In column no. 3 of the challan lash (Ext. Ka. 6), ''X' was appended. The distance between the place of occurrence to the place of police station in the pachayatnama was 3 kms. and in the challan lash it was written as 6 metres. He went to the place of occurrence by motorcycle and the distance of that road is 4-6 kilometers and the direct way is 3 kms. He denied the suggestion that at the time of panchayatnama, chick report was not with him.

(8) The post-mortem on the dead body of deceased Daya Shanker was conducted on 04.09.1983, at 4.15 p.m., by Dr. S.P. Rastogi (P.W.8), who found on his person ante-mortem injuries which are enumerated hereinafter :-

"(i) Lacerated wound 2" x ½" transverse in nature, bone deep present on the right side scalp front part 1 ½ right to the midline.

(ii) Lacerated wound 1 ½ x 0.5" x bone deep present on right side scalp front part ½" back to the injure no. one, 1 ½" right to the midline.

(iii) Lacerated wound oblique in nature 2 ½ x 0.5" x brain cavity deep present 3" right to the midline, 2" above the right ear, 3 ½" area away from right eyebrow, brain matter coming out.

(iv) Lacerated wound 1" x 1" x bone deep present on left side chin 1" left to the midline, underlying bone fractured.

(v) Lacerated wound ½" x ½" x bone deep present 0.5" medial to the medial canthus of right eye, at bridge of nose.

(vi) Lacerated wound 1" x ½" x lips deep, present on the right side upper lip, 2" right to midline, mucous membrane also lacerated of inner aspect.

(vii) Multiple fire arm entrance wound in an area 4" x 2 ½" present on the upper part of right upper arm at its fronto lateral aspect, 3 ½" above the right elbow joint each wound having size 0.2" x 0.2" to 0.3" x 0.3" skin and muscle deep, inverted margin, no blackening and tatooing present.

(viii) Multiple fire arm entrace wound present in an area 5" x 3" present on the right side chest upper part, ½" above the right nipple and ½" below the lateral 2/3" of right clavicle, each wound having size 0.2" x 0.2" to 0.3" x 0.3" chest deep, inverted margin, no blackening and tatooing present.

(ix) Multiple abraded contusion in an area 6" x 6" present on right side face below the right lower eyebrow, up to the lower jaw, under lying bone fractured into pieces."

The cause of death spelt out in the autopsy report of the deceased person was coma as a result of head injury.

(9) It is significant to mention that in his deposition in the trial Court, Dr. S.P. Rastogi (P.W. 8) has reiterated the said cause of death and also stated therein that on internal examination of the dead body of the deceased, he found that upper portion of the right chest was punctured. He further stated that he found twenty two small pellets in the muscle of right arm and also twenty two more pellets were recovered from the body and they were sealed. He opined that the death of the deceased could be done on 3.9.1983 at 5 p.m. He prepared the post mortem report as Ext. Ka-5. This witness has also proved the post-mortem examination.

(10) The case was committed to the Court of Sessions by the Chief Judicial Magistrate on 09.09.1984 and the trial Court framed charge against convict/appellants under Section 302 read with Section 34 of the Indian Penal Code. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.

(11) During trial, in all, the prosecution examined 09 witnesses, namely, P.W.1, informant Darshan, P.W.2-Mohan Lal, P.W.3- Kunwar Pal, P.W.4-Ram Asrey, P.W.5-Ram Vilas, P.W.6-Om Prakash, P.W.7-Mahaveer, P.W.8-Dr. S.P. Rastogi, P.W.9, Raghuraj Singh Sachan.

(12) We would first like to deal with the evidence of P.W. 1-Darshan. P.W.1, Darshan, who is informant and nephew of the deceased, while deposing before the Court, has stated that accused Barjor and Satti are the sons of Sheo Pal while accused Vidya is the son of Mahaveer (P.W.7) and Mahaveer and Sheo Pal were real brothers as well as their wives were real sisters. Therefore, the above three accused persons were related to each other and accused Nawab was their friend. He further stated that there was previous enmity between his uncle (deceased-Daya Shanker) and accused persons with regard to Gram Samaj land which was illegally occupied by accused persons and deceased wanted to get a panchayat-ghar constructed thereupon. He further stated that he was an eye-witness to the murder of his uncle by accused persons. He specifically deposed that while he was returning from the market along with Radhey Shyam, P.W.4-Ram Ashrey and deceased (Daya Shanker) they met with P.W.7-Mahaveer. While P.W.7- Mahaveer and deceased (Daya Shanker) continuously talking, he along with others went few paces ahead. On shouting of deceased (Daya Shanker), he saw the tussle between accused/appellant Barjor and Daya Shanker (deceased) and also there was snatching of lathi between them. He further deposed that when he along with Radhey Shyam and P.W.4- Ram Ashrey moved towards deceased (Daya Shanker) then from the north direction, other accused Nawab armed with country made pistol and from the south direction accused Vidya armed with lathi and accused Satti armed with pistol came running. Accused Satti and Nawab fired on deceased (Daya Shanker), thereafter, accused Barjor and Vidya hit the deceased with lathis. On hearing the gun shot, he was scared and stayed 100 paces away from the place of incident. Because of fire shot, deceased (Daya Shanker) fell on the ground and then all four accused escaped in the north direction. Thereafter, on reaching near deceased (Daya Shanker), they found him to be dead. He next deposed that there were many persons walking near the place of incident and P.W.2-Mohan and P.W.3-Kunwar Pal also witnessed the incident. Then he went to the Police Station Auras, District Unnao, on the very same day at about 6.45 p.m. and got a written report typed. He gave that written report at Police Station which was shown to him and proved as exhibit ka-1. Chik report was prepared on the basis of the aforesaid written report. In his cross-examination, he denied the suggestion that he was not an eye-witness to the incident and he had lodged a false case making his relatives as eyewitnesses to the incident.

(13) P.W.2, Mohan Lal deposed that the Daya Shanker (deceased) was not murdered in front of him. He testified that he was present at market on the day of incident and saw the tussle between Daya Shanker (deceased) and accused/appellant Barjor. He further stated that other accused Nawab armed with gun, accused Satti armed with Tamancha and accused Vidya armed with lathi had come and accused Nawab and Satti fired at Daya Shanker (deceased) and accused Barjor and Vidya were beating with lathi. He further stated that informant Darshan (P.W.1), Ram Ashrey (P.W.4) and Radhey Shyam were present at the place of occurrence.

(14) P.W.3, Kunwar Pal stated that he was not present at the place of occurrence. The Inspector came to the Village but did not question him. He further stated that when he came to market with Mohan Lal (P.W.2), accused Barjor gave his bundle. He further denied saying that accused Barjor and Vidya armed with lathi and accused Nawab and Satti armed with gun and katta had killed Daya shanker (deceased). The witness stated that he had no information as to who Sub-Inspector wrote any such thing.

(15) P.W.4, Ram Ashrey, who is real brother of deceased (Daya Shanker), deposed that incident dates back to one year, one month ago at about 5 p.m. when he alongwith Darshan (P.W.1) and Daya Shanker (deceased) returned from the market. Daya Shankar (deceased) started talking to Mahaveer (P.W.7) near the field then the rest of us were walking slowly. When he reached near Hiralal's field, accused Nawab, Barjor, Vidya and Satti started beating Daya Shanker (deceased). Accused Nawab was armed with country made pistol and Satti armed with katta and rest were armed with lathi. First the accused, who were armed with gun fired at Daya Shanker (deceased) then all of them started beating Daya Shanker (deceased) with lathis. He further deposed that seeing the fight, he was afraid and could not go near his brother. At the spot, Ram Singh, Buchai Pasi and Chhutai had come and none of them could say anything because of fear. Mohan Lal (P.W.2) and Kuwar Pal (P.W.3) had come later. When he went to the spot the accused persons had fled and Daya Shanker was dead. The Investigating Officer came to the spot around 8 o'clock in the night.

(16) P.W.5, Ram Vilas, deposed that he wrote a report on the dictation of Darshan (P.W.1). Thereafter, it was narrated to Darshan (P.W.1). The report was written and also signed by him. He further stated that when he was writing the report, the Sub-Inspector was not present there. He denied the suggestion that report was written on the dictation of any police personnel.

(17) P.W.7, Mahaveer, deposed that he knew Daya Shanker (deceased). He had taken field of deceased (Daya Shanker) on batai. He didn't see the murder of Daya Shankar (deceased). He stated that he and Daya Shanker (deceased) had a crop of maize. Daya Shankar came to his farm on his way back from the market. Daya Shanker (deceased) had told him that the maize is ready but to wait for 15 more days. Saying this, he went round the maide of his farm. He denied hearing any sound of gun shot.

(18) Heard Mr. Brijesh Kumar Yadav, learned counsel for the appellant, Sri Arunendra, learned Additional Government Advocate for the State and perused the record.

(19) Learned counsel for appellant has submitted that the appellant has been falsely implicated in this case because of previous animosity between the parties. The prosecution has not been able to prove its case beyond reasonable doubt. He has further submitted that evidence of the prosecution witnesses is contradictory. The two eye-witnesses P.W.1-Darshan, who is informant of the present case and nephew of the deceased and P.W.4-Ram Ashrey, who is real brother of the deceased, are highly interested and partitioned witnesses and relative of deceased, hence their evidence is unworthy and cannot be believed. He further submits that the trial court committed an error while convicting and sentencing the appellant on the basis of such a contradictory evidence. He further argued that other independent eye-witnesses P.W.2- Mohan Lal, P.W.3- Kunwar Pal and P.W.7-Mahaveer had turned hostile. He next submitted that the appellant as on date is an old man aged about 70 years and he has no criminal antecedents.

(20) Shri Arunendra, learned A.G.A. appearing on behalf of the State, however, supported the judgment of the trial Court and submits that there was no occasion for this Court to interfere it. He argued that the appellant and accused Vidya had assaulted the deceased with lathis, whereas two co-accused fired shot on the deceased and also assaulted the deceased with lathis. The ocular testimony of P.W.1 and P.W.4 is fully supported the postmortem report of the deceased (Daya Shanker), who have received injuries by both lathis and fire arm weapon. He further submits that the argument of learned counsel for appellant that P.W.1- Darshan and P.W.4- Ram Ashrey are highly interested and partitioned witnesses and they are relatives of the deceased, cannot be a ground to disbelieve the evidence as there was no occasion for them to falsely implicate the appellant in the present case. It is further submitted that so far as the old age of the appellant and his clean antecedents are concerned, it is also not a relevant consideration for acquitting him from all the charges as the appellant's participation in the crime is evident from the evidence of P.W.1- Darshan and P.W.4- Ram Ashrey, hence the present appeal on behalf of appellant is liable to be dismissed.

(21) The next submission of the learned A.G.A. is that both P.W.1-Darshan and P.W.4-Ram Ashrey, have explained their presence along with the deceased on the spot. P.W.7-Mahaveer has also supported the prosecution story. The trial Court, after examining the evidences of P.W.1-Darshan and P.W.7-Mahaveer and also considering the fact that the Investigating Officer had found a bag in which there were some potatoes and guavas and its memo was prepared by them, has recorded specific finding of fact that the deceased and P.W.1-Darshan and Ram Ashrey (P.W.4) were returning from the market of Ajgaon. He further submits that the testimonies of P.W.1-Darshan and Ram Ashrey (P.W.4) are trustworthy and credential because both of them have stated in their statement that the appellant had assaulted the deceased by lathi. He submits that the trial Court has rightly convicted the appellant under Section 302 read with Section 34 of the Indian Penal Code and sentenced him to undergo life imprisonment.

(22) We have examined the submissions advanced by the learned Counsel for the parties and gone through record.

(23) The appellant has asserted that P.W.1-Darshan and P.W.4-Ram Ashrey are having relations with the deceased and no independent witness has been examined, therefore, the adverse inference can be drawn against the prosecution and the evidence of P.W.1 Darshan and P.W.4 Ram Ashrey is not trustworthy as they are not present at the place of occurrence.

(24) The criminal law jurisprudence makes a clear distinction between a related and interested witness. A witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. The witness may be called "interested" only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished as held by the Apex Court in Sudhakar Vs. State : (2018) 5 SCC 435.

(25) At this juncture, we deem it apt to make reference to the recent judgment of Supreme Court, dealing with the question of interested witnesses.

(26) In the case of Gumansinh and Ors. vs. The State of Gujarat: AIR 2021 SC 4174, the Apex Court in paragraph 22, 23 and 26 observed as under :-

"22. However, when the Court has to appreciate the evidence of any interested witness it has to be very cautious in weighing their evidence or in other words, the evidence of an interested witness requires a scrutiny with utmost care and caution. The Court is required to address itself whether there are any infirmities in the evidence of such a witness; whether the evidence is reliable, trust-worthy and inspires the confidence of the Court. Another important aspect to be considered while analyzing the evidence of interested witness is whether the genesis of the crime unfolded by such evidence is probable or not. If the evidence of any interested witness/relative on a careful scrutiny by the Court is found to be consistent and trust-worthy, free from infirmities or any embellishment that inspires the confidence of the Court, there is no reason not to place reliance on the same.

23. A three-Judge Bench of this Court in the case of Maranadu and Anr. v. State by Inspector of Police, Tamil Nadu (2008) 16 SCC 529, while considering this issue, has observed as under:

Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the Accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version.

....Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

11. In Dalip Singh and Ors. v. The State of Punjab : (AIR 1953 SC 364) it has been laid down as under:

26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the Accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general Rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan 1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras ( AIR 1957 SC 614) was also relied upon.

13. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:

25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -`Rameshwar v. State of Rajasthan' : (AIR 1952 SC 54 at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.

14. Again in Masalti and Ors. v. State of U.P. : (AIR 1965 SC 202) this Court observed: (p. 209-210 para 14):

14. ....But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses....... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast Rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

15. To the same effect is the decisions in State of Punjab v. Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana (2002 (3) SCC 76) and Gangadhar Behera and Ors. v. State of Orissa ( 2002 (8) SCC 381).

(27) In the instant case, it transpires from the record that both the eye-witnesses, namely, P.W.1-Darshan and P.W.4-Ram Ashrey, have categorically stated in their depositions that they had gone to the market of Ajgaon along with the deceased and while they were returning from the market to their house along with the deceased Daya Shanker, in the way, deceased Daya Shanker started talking with Mahavir in respect of the issue of batai of the crops standing on the field of the deceased which was irrigated by Mahavir, however, they (P.W.1, P.W.4) proceeded onward. In the meantime, the deceased was grappling with appellant-Barjor for taking away lathi, which was with the accused/appellant Barjor. Thereafter, the deceased had cried for his help but in the meantime, other accused persons, namely, Satti armed with gun, Nawab armed with pistol and Vidya armed with Lathi also arrived. Thereafter, accused Satti and Nabab fired on the deceased Daya Shanker, as a consequence thereof, deceased Daya Shanker had fallen on the ground. Subsequently, accused/appellant Barjor and accused Vidya had assaulted the deceased Daya Shanker with lathi. Though P.W.1-Darshan had tried to approach the deceased but when he heard the gun-shots, he and Ram Ashrey (P.W.4) were frightened and they stopped at a distance of about 100 paces. Thereafter, on seeing P.W.1-Darshan, P.W.4-Ram Ashrey and other persons came nearer to them, the accused persons ran away from the spot. Thereafter, when P.W.1-Darshan, P.W.4-Ram Ashrey and others, who were at a little distance, came, then, they found that deceased Daya Shanker was dead. The statement of P.W.4-Ram Ashrey is also in the aforesaid terms. P.W.9-S.I. Raghuraj Singh, who is the Investigating Officer of the case, has stated in his examination-in-chief that he has recovered potato and guava from the place where the deadbody of the deceased was lying under recovery memo (Ext. Ka. 11). It is not the case of the appellant that the recovered potato and guava from the place of deadbody of the deceased, was planted.

(28) Going by the corroborative statements of P.W.1-Darshan and P.W.4-Ram Asrey, it is discernible that though they are related to each other and to the deceased as well, their evidence cannot discarded by simply labelling them as ''interested' or witnesses. After thoroughly scrutinizing their evidence, we do not find any direct or indirect interest of these witnesses to get the accused/appellant by falsely implicating him so as to meet out any vested interest. We are, therefore, of the considered view that the evidences of P.W.1- Darshan and P.W.4- Ram Ashrey are quite reliable and we see no reason to disbelieve them.

(29) In respect of forensic evidence, P.W.8-Dr. S.P. Rastogi, who conducted the post-mortem of the deadbody of the deceased, found six lacerated wounds, two multiple fire arm entry wounds and one multiple abraded contusion on the body of the deceased and opined that the deceased died due to coma as a result of head injury. The post-mortem report confirms the injuries occurred on the head of the deceased was by the blunt object like lathi. The ownership of the lathi has not been disputed by the appellant in his statement under Section 313 of the Cr.P.C.

(30) In the present case, the prosecution has been successful in proving the motive. There was a prior long-time enmity between the deceased and the accused/appellant. The accused/appellant has failed to prove any circumstances by which it can be said that he is falsely implicated in the case.

(31) In view of the aforesaid discussions, this Court is in agreement with the findings of the learned trial Court and sees no reason to interfere with the impugned judgment and order dated 28.1.1985 passed by the trial Court convicting and sentencing the accused/appellant for the offence under Section 302 read with Section 34 I.P.C.

(32) The instant criminal appeal is, accordingly, dismissed. The appellant is in jail and and he shall serve out the remaining sentence as ordered by the trial Court.

(33) Let the lower court record along with certified copy of the present order be transmitted to the trial court concerned for necessary information and compliance forthwith.

(Vivek Varma, J.)      (Ramesh Sinha, J.)
 
Order Date:- 16.11.2021
 
Shubhankar/Ajit/-