Shiv Baran Singh And Others vs State Of U.P.
2021 Latest Caselaw 11138 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 

 
						 Reserved on 03.08.2021
 
Delivered on 27.09.2021                  
 
Court No. - 9
 
Case :- CRIMINAL APPEAL No. - 546 of 1982
 
Appellant :- Shiv Baran Singh and others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Kr. M. Rakesh,Arun Sinha,Jyotiendra Misra,K.S.Prakash,Kapil Misra,O.P.Srivastava,R N S Chauhan,Ram Naresh Singh Chauhan,U.P.Singh
 
Counsel for Respondent :- Govt. Advocate,Amarjeet Singh Rakhra,Anil Kumar Tripathi,Manish;Bajpai,N.Mohan,Nagendra Mohan,Rajit Krishan,Sharad Dixit,Shishir Pradhan
 
Connected with
 
Case :- CRIMINAL APPEAL No. - 547 of 1982
 
Appellant :- Sardar Bahadur Singh and another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Kr. M. Rakesh,Arun Sinha,Ram Chandra Singh,S.S.Mishra
 
Counsel for Respondent :- Govt. Advocate,Anil K Tripathi,Nagendra Mohan,R.Krishna
 
With
 
Case :- CRIMINAL APPEAL No. - 548 of 1982
 
Appellant :- Hari Shanker Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Kr. M. Rakesh,K.S.Prasad,Manish Bajpai,Ms Neeta Singh Chandel,Santosh Srivastava
 
Counsel for Respondent :- Govt. Advocate,Anil K Tripathi,Nagendra Mohan,Rajat
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Rajeev Singh,J.

(Per Ramesh Sinha, J. for the Bench)

(1) The above-captioned appeals along with Criminal Appeal No. 589 of 1982 were allowed and all the appellants were acquitted by a Co-ordinate Bench of this Court vide judgment and order dated 17.09.1998 inter alia on the grounds that all the records including those which were called for from the trial Court, were found missing in the High Court and it would not be appropriate to proceed on the basis of carbon copies supplied by the complainant.

(2) Against the aforesaid judgment and order dated 17.09.1998, the de facto complainant, namely, Kunwar Bahadur Singh had approached the Hon'ble Supreme Court by filing Criminal Appeal No. 1078-1083 of 2000 arising out of SLP (Crl.) Nos. 1459-1463/99, whereas State of U.P. had also approached the Hon'ble Supreme Court by filing Criminal Appeal Nos. 1083-1086 of 2000 arising out of SLP (Crl.) Nos. 1928-31/99. The Hon'ble Supreme Court had heard the aforesaid criminal appeals together with as the common question as to whether the High Court erred in law in not disposing of the said appeals filed by the respondents on merits on the basis of the re-constructed records, was raised. After considering the submissions advanced by the learned Counsel for the parties and gone through the record, the Hon'ble Supreme Court opined that the reason given by the High Court for doubting the authenticity of the reconstructed records, is untenable as in the instant cases, reconstructed file was proper, therefore, the Hon'ble Supreme Court, vide judgment and order dated 29.11.2000, has passed the following order :-

"From the above discussion, it follows that in the instant cases, there is properly reconstructed file, therefore, the High Court erred in not going into the merits of the case and acquitting the convict appellants before it by allowing the appeals. Ergo we set aside the impugned order and restore the aforementioned criminal appeals to the file of the High Court to be heard and disposed of on merits. The High Court shall now consider and decide the appeals on merits on the basis of the reconstructed records.

It is needless to mention that while examining the merits of the case, it would be open to the High Court to examine the copies of statements in the reconstructed record on the basis of intrinsic inconsistency between the reconstructed records as the contents of the judgment of the learned Sessions Judge or with reference to any irrefragible evidence placed before it by the appellants therein.

The appeals are accordingly allowed."

(3) It appears that after remand from the Hon'ble Supreme Court by the aforesaid judgment and order dated 29.11.2000, the above-captioned appeals have been listed before different Benches of this Court. Vide order dated 04.03.2021, Hon'ble the Chief Justice has nominated this Bench and directed to place all the connected matters before this Bench. In these circumstances, the above-captioned criminal appeals have been listed before this Bench.

(4) Before proceeding further, it would be relevant to mention here that during the course of arguments, none of the parties have raised any objection with regard to the authenticity of the paper book of the instant case, which has been supplied to them or any document relating to this case and, therefore, with the consent of the learned Counsel for the parties, we proceed to hear the above-captioned criminal appeals finally.

(5) The twelve accused persons, namely, Hari Shanker Singh, Bhagwat Singh, Shiv Baran Singh, Badri Singh, Amar Bahadur Singh, Shiv Prasad Singh, Sardar Bahadur Singh, Sharda Bux Singh, Jitendra Bahadur Singh, Indra Bahadur alias Dhunni Singh, Shiv Narayan Yadav and Indra Bahadur Singh, were tried by the II Additional Sessions Judge, Raebareli in Sessions Trial No. 43 of 1982 : State Vs. Hari Shankar and 11 others. In addition, accused Bhagwat Singh was also tried by the II Additional Sessions Judge, Raebareli in Sessions Trial No. 44 of 1982 : State Vs. Bhagwat Singh, for the offence punishable under Section 25 of the Arms Act.

(6) Vide common judgment and order dated 15.07.1982/ 16.07.1982, the learned II Additional Sessions Judge, Raebareli has convicted and sentenced the accused persons in the aforesaid Sessions Trial Nos. 43 of 1982 and 42 of 1982 in the manner as indicated hereinbelow :-

"Accused Hari Shanker Singh, Bhagwat Singh, Shiv Baran Singh and Shiv Prasad Singh

"(i) Under section 148 of the Indian Penal Code to undergo imprisonment for one year's R.I.;

(ii) Under Section 302 read with Section 149 of the Indian Penal Code to undergo imprisonment for life;

(iii) Under Section 323 read with Section 149 of the Indian Penal Code to undergo six months' R.I.; and

(iv) Under Section 395 of the Indian Penal Code to undergo five years' R.I."

Accused Badri Singh, Amar Bahadur Singh, Sardar Bahadur Singh, Sharda Bux Singh, Jitendra Bahadur Singh, Indra Bahadur Singh alias Dhunni Singh, Shiv Narain Yadav and Indra Bahadur Singh son of Shitla Bux Singh

(i) Under section 147 of the Indian Penal Code to undergo imprisonment for nine months' R.I.;

(ii) Under section 302 read with Section 149 of the Indian Penal Code to undergo imprisonment for life;

(iii) Under section 323 read with Section 149 of the Indian Penal Code to undergo imprisonment for six months' R.I.; and

(iv) Under section 396 of the Indian Penal Code to undergo imprisonment for five years' R.I."

The trial Court directed the sentences of all accused persons on all the counts to run concurrently.

(7) However, II Additional Sessions' Judge, Raebareli had acquitted the accused Bhagwat Singh in Sessions Trial No. 44 of 1982 for the offences punishable under Section 25 of the Arms Act vide aforesaid judgment and order dated 15.07.1982/16.07.1982.

(8) Aggrieved by the aforesaid conviction and sentences, accused Shiv Baran Singh, Badri Singh, Amar Bahadur Singh, Shiv Prasad Singh, Jitendra Bahadur Singh, Indra Bahadur Singh, Shiv Narain Yadav and Indra Bahadur Singh have preferred Criminal Appeal No. 546 of 1982, whereas accused Sardar Bahadur Singh and Sharda Bux Singh have preferred Criminal Appeal No. 547 of 1982 and accused Hari Shanker Singh preferred Criminal Appeal No. 548 of 1982 and accused Bhagwat Singh preferred Criminal Appeal No. 589 of 1982.

(9) As per office report dated 04.09.2019 appended in Criminal Appeal No. 547 of 1982 : Sardar Bahadur Singh Vs. State of U.P., accused/appellant of Criminal Appeal No. 589 of 1982, namely, Bhagwat Singh, died during pendency of the said appeal, hence his appeal has already been abated vide order dated 08.09.2015 and, therefore, his appeal has not been listed in the today's cause list along with the above-captioned appeals.

(10) It transpires from the record that accused/appellant no.1-Shiv Baran Singh, accused/appellant no.6-Indra Bahadur Singh alias Dhunni Singh and accused/appellant no.8-Indra Bahadur Singh of Criminal Appeal No. 546 of 1982 and accused/appellant no.1-Sardar Bahadur Singh of Criminal Appeal No. 547 of 1982 died, during pendency of the above-captioned appeals, hence their appeals have already been abated vide order dated 06.02.2020.

(11) Now, we proceed to examine the correctness of the conviction and sentences as awarded vide impugned order passed by the trial Court to the surviving accused/appellant no.2-Badri Singh, accused/ appellant no.3-Amar Bahadur Singh, accused/appellant no.4-Shiv Prasad Singh, accused/appellant no.5-Jitendra Bahadur Singh, accused/appellant no.7-Shiv Narain Yadav in Criminal Appeal No. 546 of 1982, accused/appellant no.2-Sharda Bux Singh in Criminal Appeal No. 547 of 1982 and accused/sole appellant-Hari Shanker Singh in Criminal Appeal No. 548 of 1982.

(12) Since the above-captioned appeals arise out of a common factual matrix and impugned judgment, we are disposing them of by a common judgment.

(13) Shorn off unnecessary details, the case of the informant P.W.1-Kunvar Bahadur Singh, as narrated in the written report (Ext. Ka.1), is as under :-

In the evening of 01.09.1981, at the village of informant- Kunvar Bahadur Singh (P.W.1), namely, Parmanpur, Aalha (madrigals) was going on at the door of Bhagwati Gadariya. The informant-Kunvar Bahadur Singh (P.W.1), his brother Avadhesh Bahadur Singh (deceased) and his father Chandra Bhushan Singh had gone to listen Aalha (madrigals). At the time of listening Aalha (madrigals), altercation took place between the father of the informant (Chandra Bhushan Singh), his brother (Avadhesh Bahadur Singh) and some villagers with accused Shiv Baran Singh (appellant no.1 in Criminal Appeal No. 546 of 1982), upon which accused Shiv Baran Singh, after using abusive language and threatening them, went away from there.

At about 09.30 p.m., the brother of the informant (Avadhesh Bahadur Singh) went to his home and also after listening Aalha (madrigals), the informant-Kunwar Bahadur Singh (P.W.1), Jai Singh, son of Ram Bahadur Singh, Tej Bahadur Singh (P.W.2) son of Ramdas Singh, Balwant Singh, son of Bhagwati Deen Singh and Peshkar Singh, son of Sunder Singh also went behind the brother of the informant (Avadhesh Bahadur Singh). As soon as the brother of the informant (Avadhesh Bahadur Singh) came out from the street situated near the house of Chhatarpal Singh, accused persons Hari Shankar Singh (appellant in Criminal Appeal No. 548 of 1982) son of Fateh Bahadur Singh, Badri Singh (appellant no.2 in Criminal Appeal No. 546 of 1982), Amar Bahadur Singh (appellant no.3 in Criminal Appeal No. 546 of 1982), Shiv Prasad Singh (appellant no.4 in Criminal Appeal No. 546 of 1982), son of Kalika Bux Singh, Sardar Bahadur Singh (appellant no.1 in Criminal Appeal No. 547 of 1982), son of Vijay Bahadur Singh, Indra Bahadur Singh (appellant no.6 in Criminal Appeal No. 546 of 1982) son of Shitla Bux Singh, Sharda Bux Singh (appellant no.2 in Criminal Appeal No. 547 of 1982), son of Shitla Bux Singh, Jitendra Bahadur Singh (appellant no.5 in Criminal Appeal No. 546 of 1982) son of Balikaran Singh, resident of Village Parmanpur and Shiv Narayan Yadav (appellant no.7 in Criminal Appeal No. 546 of 1982), resident of village Pure Gosai, Majare Basar, surrounded the brother of the informant (Awadhesh Bahadur Singh) at once. Hari Shankar Singh (appellant of Criminal Appeal No. 548 of 1982) was armed with country made pistol and other persons were armed with Kanta, ballam and lathis. Accused Bhagwat Singh instigated to kill him, to which Hari Shanker Singh (appellant of Criminal Appeal No. 548 of 1982) fired with country made pistol, as a consequence of which, informant's brother (Awadhesh Bahadur Singh) fell down in the street near nabadan (cesspool) and thereupon, all the accused persons started beating him with lathis, kanta and ballam. Thereafter, informant Kunvar Bahadur Singh (P.W.1), his friends and his brother raised alarm, upon which his grand-father Dan Bahadur Singh (P.W.3) and his aunt Ramraj Kumari, widow of Chandra Bhan Singh ran to save the informant's brother (Awadhesh Bahadur Singh), then, accused persons had also beaten them. Thereafter, when informant's brother (Awadhesh Bahadur Singh) ran in an injured condition, then, accused persons surrounded him near the house of Chattrapal Singh and killed him. In the meantime, his father Chandra Bhushan Singh came with licensee gun single barrel twelve bore no. 197167 and challenged the accused persons, then, accused Bhagwat Singh and three-four persons snatched the gun from his father. The incident was seen by all the aforesaid persons in the light of their torches and in the light of the torches of the accused/appellants. Prior to 12-13 years, accused Sardar Bahdur Singh (appellant no.1 in Criminal Appeal No. 547 of 1982) had falsely implicated the informant's father and his grand father and since then, accused persons had ill-will against the family members of the informant and because of which, on seeing the chances, accused persons killed the informant's brother (Awadhesh Bahadur Singh) and the dead body of his brother was lying there.

(14) The informant P.W.1-Kunwar Bahadur Singh himself wrote down the F.I.R. (Ext. Ka.1), put his signature thereron and along with it reached to the Police Station Bhadokhar, District Raebareli at a distance of 7 ½ Kms. and at about 11:00 p.m., he handed over the handwritten report to P.W.7-H.C. Ram Jas Yadav. On the basis of the said report, P.W.7-H.C. Ram Jas Yadav prepared a chik F.I.R. (Ext. Ka.7) and made its entry in the general diary and registered a case (Ext. Ka.8).

(15) The evidence of P.W.7-H.C. Ram Jas Yadav shows that on 01.09.1981, he was posted as Head Moharrir at police station Bhadokhar and on the said date, Kunvar Bahadur Singh (P.W.1) came along with the written report (Ext. Ka.1), on the basis of which, chik F.I.R. (Ext. Ka.7) was prepared by him, for which entry was made by him in report no. 39 in G.D. and also lodged a case. A copy of the chik F.I.R. (Ext. Ka. 8) has been filed. He further deposed that on 02.09.1981, at about 5:45 p.m., S.O. Sri Shyampal Singh Rana (P.W.11) came along with eight sealed bundle items and one S.B.B.L Gun No. 197167 at police station and admitted therein, for which entry was made by him in report no. 24 in G.D.. The Sub-Inspector had also taken four accused persons and also detained them in jail, for which entry was made by him in report no. 24.

In the cross-examination, P.W.7-H.C. Ram Jas Yadav has deposed that Kunvar Bahadur Singh (P.W.1) was accompanied by Chowkidar for filing report and at that time, Sub-Inspector was present at police station. At about 11:30 P.M., the Sub-Inspector went to the place of occurrence by Jeep. At the time of lodging the accused in jail, accused Bhagwat Singh, Hari Shanker (appellant in Criminal Appeal No. 548 of 1982), Sharda Bux Singh (appellant no.2 in Criminal Appeal No. 547 of 1982), Sardar Bahadur Singh (appellant no.1 in Criminal Appeal No. 547 of 1982) had injuries, entry of which was also made by him in G.D, however, he had not made their medical examination, for which no reason was given. This witness has denied the suggestion that the report was ante time and the report was lodged after returning of the Sub-Inspector from the place of occurrence. The special report of the incident was sent by Constable Kalluram on 02.09.1981 at 4:30 a.m., which was entered in report no.4 in G.D. Till 02.12.1981, he was posted at Police Station Bhadokhar, by which time the items of the case were at police station.

(16) A perusal of the chik FIR shows that the distance between the place of incident and Police Station Bhadokhar was seven and a half kilometers. It is significant to mention that a perusal of the chik FIR also shows that on the basis of written report (Ext. Ka.1), a case crime no. 207 of 1981, under Sections 147, 148, 149, 302, 395 I.P.C. was registered against appellants at police station Bhadokhar, District Raebareli.

(17) The investigation of the case was conducted by SI Shyampal Singh Rana (P.W. 11). His evidence shows that on 01.09.1981, he was posted as Station Officer at Police Station Bhadokhar. On the said date, informant Kunvar Bahadur Singh (P.W.1) has lodged the written report in his presence. The investigation of the case was conducted by him. He made entry of the relevant papers in the case diary and also recorded the statement of informant Kunvar Bahadur Singh (P.W.1) at police station. Thereafter, at about 11:30 p.m., he along with the police personnel went to the place of incident at village Parmanpur by Jeep. At the place of incident, the deadbody of deceased Avadhesh was lying near the door of Chattrapal Singh. He left Constable Brahma Deen and Constable Uma Dutt near the deadbody of the deceased for protection and himself went in search of the accused persons in the night but he could not find them. However, at about 5:00 a.m., he recorded the statement of witnesses Jai Singh and Tej Bahadur Singh (P.W.2) and thereafter he came back to the door of Chattrapal Singh, wherein identification of the deceased was done and at about 06:30 a.m., panchayatnama along with photo laash, challan laash and letter for post-mortem were prepared. He also deposed that the documents were prepared on his dictation by S.I. Babu Singh, who was an under trainee, which was marked as Ext. ka-14 to Ext. Ka. 17. Thereafter, the sealed dead body with cloth was sent for post-mortem along with Constable Ramadhar (P.W.8) and Chowkidar Harcharan Lal. Thereafter, he inspected the place of occurrence and prepared the site plan (Ext. Ka. 18). He had also collected the plain earth and blood stained earth in a sealed container from the place of occurrence as well as from the place where the corpse was lying and also prepared two recovery memos duly signed by him (Ext. Ka 19 and Ext.20).

(18) P.W.11-Shyampal Singh has further deposed that at the place of occurrence, a used cartridge was recovered, which was sealed under the recovery memo (Ext. Ka.21). Thereafter, he inspected the torches of witnesses Tej Bahadur (P.W.2), Jai Singh and Kunvar Bahadur (informant-P.W.1), which were found in a running condition and after inspection, the same were handed over to them but their memos were not prepared, however, there is an endorsement in the case diary with respect to the inspection of their torches. Thereafter, statements of the witnesses, Balwant Singh, Peshakar Singh, Das Bahadur Singh, Ramraj Kumari, Chandra Bhushan Singh and others were recorded. In the meanwhile, SI Raghuraj Singh, who was on patrol duty and later on came at the place of occurrence, was deputed for searching the accused. Thereafter, accused Sharda Bux Singh (appellant no.2 in Criminal Appeal No. 547 of 1982) and Sardar Bahadur Singh (appellant no.1 in Criminal Appeal No. 547 of 1982) were arrested. Thereafter, accused Sardar Bahadur Singh was interrogated and on his pointing out, lathi, which was used at the time of the incident by him, was recovered from the chappar of his house in the presence of witnesses Dal Bahadur Singh (P.W.5) and Ayodhya Singh, in which blood stains were present. The lathi was taken in the custody and prepared recovery memo (Ext. Ka.22). Thereafter, he inspected the place of recovery of lathi and also prepared the site plan (Ext. Ka.23). Thereafter, he interrogated accused Sharda Bux Singh (appellant no.2 in Criminal Appeal No. 547 of 1982) and on his pointing out, lathi was recovered from his house, wherein blood stain was present. He, thereafter, took the lathi in his custody, sealed it and prepared recovery memo for the same (Ext. Ka. 24). Thereafter, he inspected the place of occurrence of recovery of lathi and prepared the site plan (Ext. Ka. 25). Thereafter, Constable Guruprasad and Uma Datt had arrested accused persons Bhagwat Singh and Hari Shanker Singh (appellant in Criminal Appeal No. 548 of 1982). Thereafter, he interrogated accused Bhagwat Singh and on his pointing out, the licensee gun, which was snatched at the place of incident, was recovered from his house and, thereafter, he took the said licensee gun in custody, sealed it and a recovery memo for the same was prepared as Ext. Ka. 2. Thereafter, he inspected the place of recovery of licensee gun and prepared site plan (Ext. Ka. 26). Thereafter, accused Hari Shanker (appellant in Criminal Appeal No. 548 of 1982) was interrogated and on his interrogation, accused Harishanker told him that Kanta of accused Bhagwat Singh, which he used at the time of incident, was hidden at the house of Chetrapal Singh, wherein he resided. Thereafter, on the pointing out of accused Hari Shanker, one Kanta was recovered, which was sealed and recovery memo (Ext. Ka. 3) was prepared. He also inspected the place of occurrence and prepared the site plan (Ext. Ka. 27). Thereafter, he recorded the statements of witnesses of recovery, namely, Baijnath Singh (P.W.4) and Ayodhya Singh, however, rest of the accused persons could not be traced out. Thereafter, he came back with the recovered items and accused persons at police station and thereafter, he lodged the recovered items and the accused persons at police station vide report no. 24 at 05.45 p.m.

(19) P.W.11 S.I. Shyam Pal Singh Rana, in his examination-in-chief, has further deposed that after recording the statements of Ramraj Kumari, Ram Bahadur Singh at the place of the incident, they were sent for medical examination from the place of incident to Sadar Hospital Raibareli and when he reached back to the police station, he received medical examination report as well as post-mortem report at 06.20 p.m., for which entry was made in the case diary. On 03.09.1981, he searched for the rest of the accused persons. However, on 04.09.1981, when he came to Sadar to search the accused person, he came to know in the Court that accused Indra Bahadur Singh alias Dhunni Singh (appellant no.6 in Criminal Appeal No. 546 of 1982) had surrendered in the Court. On the same day, when he was on the way to Parmanpur via Sadar police station, he came to know about the presence of accused Shiv Narain (appellant no.7 in Criminal Appeal No. 546 of 1986) at the tea shop of Kallu situated in Mullahganj, whereby he went there and arrested him and also interrogated him on the way to Parmanpur. On 05.09.1981, informant's father Chandra Bhushan Singh was called at the police station and saw his licensee gun. On the same day, when he reached Sadar, he came to know that accused Badri Singh (appellant no.2 in Criminal Appeal No. 546 of 1982), Amar Bahadur Singh (appellant no.3 in Criminal Appeal No. 546 of 1982), Shiv Narayan Singh (appellant no.7 in Criminal Appeal No. 546 of 1982) and Jitendra Singh (appellant no.5 in Criminal Appeal No. 546 of 1982) had surrendered in the Court and thereafter, he interrogated them. On 08.09.1981, on being called by C.O., he reached there, from where the pairokar told him that accused Shiv Prasad Singh (appellant no.4 in Criminal Appeal No. 546 of 1982) had surrendered before the Court and thereafter, he interrogated him. Thereafter, on 09.09.1981, he filed charge-sheet (Ext. Ka. 28) against the accused persons, namely, Hari Shanker Singh, Bhagwat Singh, Shiv Narayan Singh, Badri Singh, Amar Bahadur Singh, Shiv Pratap Singh, Sardar Bahadur Singh, Sharda Bux Singh, Jitendra Bux Singh, Indra Bahadur Singh alias Dhunni Singh and Shiv Narain. As the accused Indra Kumar Singh (appellant no.6 in Criminal Appeal No. 546 of 1982) could not be arrested, therefore, his name in the charge-sheet has been mentioned as absconder. He also stated that recovered items were to be sent for the chemical examiner but he was transferred, hence further action could not be made.

(20) In his cross-examination, P.W.11-S.I. Shyampal Singh Rana has deposed that on 28.09.1981, he left the charge of police station Bhadokhar. Till that time, recovered items were still in the police station and he did not get an opportunity to send the items to the malkhana (warehouse). The items were not with him and he did not remember that seal was his or other S.I. He further stated that it is not possible that he had given the seal to any innocent person of public. The seal is being used frequently and it is being kept in custody and used it and do not keep it in secure place.

(21) It has further been stated by P.W.11-S.I. Shyampal Singh Rana, in his cross-examination, that he started to search the accused persons in the night at around 1:00 a.m. and also raided their houses in the night. He did not enter their houses and on enquiry their around, it was confirmed that the accused were not at home. The names of the people who were questioned in this regard are not known. He didn't think it was right to search the houses at night and in the morning, he was busy in investigation and informer was put to give clues of the accused, on account of which, he did not searched their houses. He further submitted that when he reached at the place of incident, he did not find Kunvar Bahadur Singh (P.W.1) and on the next day, Kunvar Bahadur Singh (P.W.1) met him but by what time he met, he do not remember. He also stated that he also went to the house of Chandra Bhushan Singh in the night but he did not know about his whereabout. He also stated that the time at which the statement of Chandra Bhushan Singh was taken is not mentioned in the case diary. He stated that most probably it would be around 12-1 p.m. and prior to his statement, statement of Dan Bahadur Singh (P.W.3) was recorded. When he recorded the statement of Chandra Bhushan, he did not remember it. He did not see the license of Chandra Bhushan's gun at the time of recording his staement nor did he see how many cartridges were with Chandra Bhushan. He submitted that empty catridge, which was found at the place of occurrence, was not sent by him to the ballistic expert in order to verify as to whether it was fired with the gun of Chandra Bhuhan or not. He did not get the gun inquired as to whether it was used or not as during the investigation, firing from it was not told. He also stated that house of Kunvar Bahadur Singh (P.W.1) and Dan Bahadur Singh (P.W.3) was 127 steps away from the place of incident. He did not record the statement of all the persons of the houses situated within the radius of 127 steps, but he recorded some of them. He recorded the statement of Shambhu and Pancham and may be others fled at that place on account of the terror that they too would be made accused. He further stated that he did not tell as to whether Kunvar Bahadur (P.W.1) came at Sadar with the corpse or not.

(22) P.W.11-S.I. Shyampal Singh Rana, in his cross-examination, has denied the suggestion that report was lodged after he reached the place of incident. He did not record the statement of S.I. Raghuraj Singh during the investigation. He did not record the statement of the persons in whose presence he saw the torches. The torches were in running condition as it was seen in a day time, therefore, he could not assess the range of the light of the torches in night. He did not record the difference of two places from whom he collected the blood in the site plan and he did not record the difference during the investigation nor he is able to recall the same. However, it could be assumed to be 14-20 feet. He did not prepare any memo prior to recovery. He further stated that in the houses of the accused persons from where recovery was said to be made by him on their pointing out, he did not know who lived therein but their family members were living there. He further stated that lathi was recovered from the open shed (chappar) outside the house of accused Sardar Bahadur Singh, which is the first room while entering his house and the said lathi was recovered on the pointing out of accused Sarda Bux Singh. The two doors of the said room was opened inward and one door of the said room was opened outward. He enquired both the accused persons beneath the trees, situated in front of the house of Shambhoo Chamar. He denied that he did not explain as to how many persons gathered there. He, however, stated that it must have taken 10-15 minutes to inquire. First of all, he enquired from accused Sardar Bahadur Singh, recovered the lathi, prepared the site plan and thereafter he enquired from accused Sarda Bux Singh and during this period, Sarda Bux Singh was with him and was in custody of the Constables. Thereafter, Constables and accused Sarda Bux Singh did not go to the house of Sardar Bahadur Singh after the recovery being made. He further stated that he did not know that if the Constables kept talking with accused Sarda Bux Singh, then what they talked to him about. At that relevant time, several small children were there but he could not give numbers of that. The older person probably were not in that crowd. After sometime from the recovery of two persons, the Constables took by arresting accused Bhagwat Singh and accused Hari Shanker Singh. He did not remember the place from where they were arrested and also did not remember the place from where they were enquired. He, however, first of all, recorded the statement of accused Bhagwat Singh and also completed the recovery process and then he enquired from accused Bhagwat Singh. He further stated that he did not remember whether he enquired from accused Bhagwat Singh about Kanta or not and also he did not remember the place where he enquired from accused Hari Shanker. He further stated that he did not search the accused person because he was brought there by other personnel. He did not record the statement of said personnel. He further stated that the gun from where it was recovered, was the outer room of the house, which was also known as Takotha. He did not mention the doors of the room from the place where the recovery was made. No recovery memo was prepared by him prior to arrest of accused Bhagwat Singh and accused Hari Shanker Singh. He further stated that he did not know whether Chatrapal and accused Hari Shanker Singh were having relation or not. He did not see the family register nor see ration card for ascertaining the fact as to who lives to whom house. He further stated that the sand that came out from the canal in the construction of the house was piled up but he did not remember that which part of the house was to be constructed.

(23) P.W.11-S.I. Shyampal Singh Rana, in his cross-examination, has further stated that he did not beat up or harshly treated the accused. He did not remember that when accused Hari Shanker was brought before him after arresting, did he get any injury or not. He also stated that he knows Sri Jagannath Singh. After the incident, Sri Jagannath Singh made an application against the conduct of the police. He stated that in relation to the investigation, he lastly visited the village, where the incident occurred, on 04.09.1981 and on 04.09.1981, he did not search the house of any accused person. He denied the suggestion that the mark of blood on the recovered items were not present. He did not send it to Chemical Examiner. He further stated that he could not trace Bhagawati Gaderiya nor did he recorded his statement. He stated that he did not try to find out the cause of heated verbal exchange in the madrigals but on seeing the Case Diary, he stated that he got to know that Chandra Bhushan Singh had stated the reason for the dispute in madrigals. He stated that he did not search accused persons for the torches. P.W.2-Tej Bahadur Singh has made statement that entire incident was seen by every person from their own torches as well as from the light of the torches of the killer. P.W.3 Dan Bahadur Singh has made statement that he listened the alarm that Awadhesh Bahadur Singh was being beaten and this witness did not tell him about listening of any blast and also did not tell him about seeing the incident in the torchlight. He also stated that it is not written in the statement made by P.W.3-Dan Bahadur Singh that accused Bhagwat told the Sub-Inspector in front of him about the gun which he was carrying would be made recovered by him. He did not record any statement of the brother of the complainant Faujdar Singh. He did not make any identification of the recovered Katta. He denied the suggestion that accused, who were said to be arrested during the daytime, were actually arrested at night and also no recovery was either made at the pointing out of accused or from their house. He further stated that in the recovery memo, it has not been noted as to whether the copy of it has been given to the accused or not. He also stated that when he reached the police station along with the accused persons, copy of the recovery memo was not along with them. He also stated that it would be wrong to say that Jagannath Singh identified against him and according to him, accused were the men of Jagannath Singh and because of that he was falsely implicated. Jagannath Singh made applications for identification against the higher officials only after the incident and not prior to it. The complainant belongs to a family of simple living. He further stated that during his posting, the complainant did not visit the police station. It would be wrong to say that due to influence of complainant or pressure of higher officials, unfair investigation was conducted and also no recovery memo was prepared at police station. He did not record the statement of Chaukidar.

(24) The evidence of P.W.9-S.I. Hanoman Singh shows that in September, 1981, he was posted at Police Station Bhadokhar, Raebareli. The investigation of the case under Section 25 of the Arms Act against accused Bhagwati was conducted by him. From 03.09.1981, he started the investigation of the case and on the said date, he made entries the copy of the documents in the case diary and recorded the statement of S.I. Sri Shyam Pal Singh (P.W.11) and H.C. Ramjas Yadav (P.W.7) at the police station. On 24.09.1981, he recorded the statement of witnesses Jawahar Lal, Baijnath Singh. He inspected the place of occurrence on the pointing out of witness Jawahar Lal and prepared the site plan (Ext. Ka. 10). Thereafter, he made enquiry from Ved Prakash and Sahab Datt. On 30.09.1981, after completion of investigation, he submitted charge-sheet (Ext. Ka.11) against the accused. He proved the chick report (Ext. Ka.12) which was written and signed by H.C. Ramjas Yadav.

In his cross-examination, P.W.9 S.I. Hanoman Singh has deposed that he did not produce the gun before the District Magistrate, Raibareli nor taken permission for initiation of case under Section 25 of the Arms Act.

(25) The evidence of P.W.8-Ram Adhar Rawat shows that on 02.09.1981, he was posted as Constable at Police Station Bhadokhar. On the said date, he went along with the Inspector at Village Parmanpur. At about 08:30 a.m., he was handed over the sealed deadbody, which was taken by him for post-mortem to hospital. He identified the deadbody before the doctor. He also handed over the requisite documents in relation to deadbody to the doctor. When the deadbody was in his custody, it was being kept in a sealed condition and no one was permitted to look or touch it.

In the cross-examination, P.W.8-Ram Adhar Rawat has stated that he brought the deadbody on a cart. He brought the cart from Majorganj. He reached hospital at 04:00 p.m.. He handed over the documents to the doctor at 04:00 p.m. Chaukidar was also with him and none else.

(26) The post-mortem on the dead body of Awadhesh Bahadur Singh was conducted on 02.09.1981, at 4.00 p.m., by Dr. D.S. Shukla (P.W.10), who, found, on his person, ante-mortem injuries, enumerated hereinafter :--

"Ante-mortem injuries of deceased Awadhesh Bahadur Singh

(1) Incised wound with contused margins at 4 cm x 2.5 cm x bone deep medial part right eye nosal bone cut eye ball cut and wound cut.

(2) Incised wound with contused margins 10 cm x 2 cm x bone deem right zygomatic part zygomatic process cut (outer lable).

(3) Two overlapping incised wound with contused margins 10 cm x 4 cm bone deep 2 cm above no.2.

(4) Lacerated wound 7 cm x 1.5 cm x bone deep right parietal region 11 cm from right ear.

(5) Incised wound with contused margins. over pinne of right ear 4 cm x 3 cm x through and through.

(6) Lacerated wound 2 cm x 0.5 cm x muscle deep 2 cm below right eye.

(7) Lacerated wound 2 cm x ½ cm x bone deep on right moral region.

(8) Lacerated wound 9 cm x 1 cm x bone deep left parietal region 7 cm above left ear.

(9) Abrasion 4 cm x 1 cm below right clavicle.

(10) Lacerated wound 3 cm x 0.5 cm x bone deep back of right elbow joint.

(11) Lacerated wound 2 cm x 0.5 cm x bone deep inner side right lower 3rd fore arm.

(12) Lacerated wound 5 cm x 1 cm x muscle deep on middle of right index and middle finger.

(13) Lacerated wound 5 cm x 2 cm x bone deep 11 cm below right knee.

(14) Two contusion right chest. 20 cm x 3 cm, 12 cm below right asula.

(15) Lacerated wound 2 cm x 1 cm x bone deep outerside left elbow.

(16) Traumatic swelling 10 cm x 5 cm x lower part left forearm both bones fractured.

(17) Lacerated wound 3 cm x 2 cm x muscle deep on middle of left index and middle fingers.

(18) Incised wound with contused margins 5 cm x 3 cm x muscle deep on right scapular region.

(19) Contusion 10 cm x 4 cm x 6 cm above injury no. (18).

(20) Two contusion 15 cm x 4 cm on right scapular region.

(21) Two contusion 10 cm x 3 cm back of lower chest.

(22) Incised wound with contused margins left feet below little to a 4 cm x 1 cm x muscle deep.

(23) Lacerated wound 3 cm x 1 cm bone deep middle left leg front.

(24) Incised wound with contused margins 2 cm x 1 cm x muscle deep 4 cm below injury no.23.

(25) Lacerated wound 1 cm x 1 cm x muscle deep 10 cm above left ankle.

(26) Contusion 2 cm x 2 cm x 2 cm above injury no. 23."

The cause of death spelt out in the autopsy reports of the deceased person was shock and haemorrhage as a result of ante-mortem injuries, which he had suffered.

(27) It is significant to mention that in his deposition in the trial Court, Dr. D.S. Shukla (P.W.10) has reiterated the said cause of death and also stated therein that on internal examination, he found on the corpse of the deceased that the frontal bone of the head was fractured; membrane of the brain was congested; ribs 3 to 6 on the right side were fractured; clotted blood was on outer side cereburm. He further stated that these injuries were sufficient in the ordinary course to cause death. He also stated that the death could have been caused on 01.09.1981 at about 9:30 p.m.. He further stated that incised wounds with contused margins could have been caused by Kanta (Ext.2) and the remaining injuries were caused by some blunt objects like Lathi. He also proved the post-mortem examination report was (Ext. Ka.13) prepared by him.

In his cross-examination, P.W.10 Dr. D.S. Shukla has admitted the fact that he received the related documents on 02.09.1981 at 3 :00 P.M. and the sealed deadbody was made available to him in post-mortem house at 4:00 p.m. when he reached to conduct post-mortem of the deceased there. He further stated that he has no record which shows the time when the deadbody reached to the mortuary. He stated that margins of the incised wounds were clear cut and the clear cut margin was not irregular and if it would be caused by a heavy cutting weapon, then, margin would be clear cut but it would be contused on account of pressure. The contusion could be caused by blunt object or pressure. The contusion could not be caused by pressure of sharp edge. The contusion could also be caused on burst of capillaries below the skin and if the blood would ooze out, then, it could not be contusion.

(28) On being asked if any blunt object like lathi having less depth and sharp edged and when hit from it touches the bones, then, what will be nature of injuries caused, P.W.10-Dr. D.S. Shukla has deposed that if a blade of sharp edged object or a sharp edged knife is attached in the lathi or danda, then, incised wound could be caused by sharp edged object and the portion on which the impact of the blunt object caused, contusion could be occurred. The incised wound, which was found in the deadbody of the decased, had contusion in the margin. He denied the suggestion that incised wound with contused margin could not be caused by Kanta (Ext-2).

(29) The evidence of P.W.11 S.I. Shyampal Singh Rana shows that Smt. Ramraj Kumari and P.W.3-Dan Bahadur Singh were sent for medical examination to District Hospital, Raebareli after their statement was recorded by him. The injuries of Smt. Ramraj Kumari and P.W.3-Dan Bahadur Singh were examined on 02.09.1981, at 02:00 p.m. and 2:10 P.M., respectively, by P.W.6-Dr. Surendra Singh, Incharge Medical Officer, District Hospital, Raebareli, who, found on their persons, following injuries :-

"Injuries of Smt. Ramraj Kumari wife of Late Chandra Bhan Singh:-

1. Contusion 3 cm x 2 cm over back at left forearm 6 cm above the wrist.

2. C/o pain of over back at lower part and no external mark of injury over Rt. part.

In the opinion of P.W.6 Dr. Surendra Singh, the injury no. 1 is simple in nature and caused by blunt object and the duration of the injury was one day old.

Injuries of P.W.3-Dan Bahadur Singh, son of Sher Bahadur Singh :-

1. Lacerated wound 6 cm x ½ cm x ¼ cm over back of right external ear.

2. Lacerated wound 2 cm x ½ cm x 1/10 cm over palm (left hand) 3½ cm over the base of thumb.

3. Contusion 3 cm x 2 cm over back of left hand with suspected fracture of bone underneath with traumatic swelling around the contusion 8 cm x 6 cm.

4. Contusion 2½ cm x 2 cm over back of right hand 3 cm below the wrist with traumatic swelling around the contusion 5 cm x 3½ cm with suspected fracture of bone underneath.

5. Contusion 6 cm x 3 cm over back right scapular area, upper part.

In the opinion of P.W.6 Dr. Surendra Singh, injuries no. 3 and 4 were kept under observation; x-ray of right hand was advised; the remaining injuries were simple; all the injuries were caused by blunt object; and the duration of the injuries was about one day old.

(30) It is significant to mention that in his deposition in the trial Court, P.W.6 Dr. Surendra Singh has reiterated the said cause of injuries and also stated therein that on 02.09.1981, he was posted as Incharge Medical Officer, District Hospital, Raibareli. He examined the injuries of Smt. Ramraj Kumari on the said date at 10:00 a.m. The injury no.1 sustained by Smt. Ramraj Kumari, w/o Chandra Bhan Singh, was simple in nature and could be caused by lathi and danda and the injuries were one day old. He further stated that he also examined the injuries of P.W.3-Dan Bahadur Singh at 2:10 p.m and after examination, he opined that injuries no. 3 and 4 were kept in observation and advised him for X-ray. He also stated that remaining injuries were simple in nature and all the injuries were caused by blunt objects like lathi and danda and injuries were about one day old. He further stated that injuries of both the injured could have caused on 1.09.1981 at 09:30 p.m. At the time of examination of the injured, he prepared the injury reports Ext. Ka.5 and Ext. Ka. 6.

In his cross examination, P.W.6 Dr. Surendra Singh has deposed that injury no. 1 sustained by Ramraj Kumari can come by falling on the ground. He further deposed that he cannot tell as to whether X-Ray of injuries of Dan Bahadur was done or not. The injuries sustained by Dan Bahadur Singh (P.W.3) is superficial. He also deposed that injured were brought by Constable Jagatram Mishra.

(31) Accused Bhagwat Singh, accused/appellant Hari Shankar Singh, accused/appellant Sharda Bux Singh and accused /appellant Sardar Bahadur Singh, were examined on 04.09.1981, at 09:30 a.m., 09:40 a.m., 09:50 a.m. and 10:10 a.m., respectively, by D.W.1 Dr. R.N. Sharma, Medical Officer, District Jail, Raebareli, who, found, on their persons, following inujuries :-

"Injuries of accused Bhagwat Singh :-

''1. Lacerated wound 2 cm x 1 cm skin deep on lateral side of left elbow joint.

2. Contusion 5 cm x 2 cm on lateral side of upper part of right upper arm.

3. Abrasion 3 cm x 1 cm on front of left knee joint.

4. Abrasion1 cm x ½ cm on middle of back of right foot.'

In the opinion of D.W.1 Dr. R.N. Sharma, all the injuries are simple in nature and caused by blunt object. The duration of injuries were four days old.

Injuries of accused/appellant Hari Shankar Singh:-

''1. Lacerated wound 1 cm x 1 cm x skin deep (round) on front of head 3 cm above the right eye brow (suspected gun shot injury).

2. Contusion 3 cm x 2 cm on lateral side of right elbow joint.

3. Contusion 3 cm x 2 cm on front of right knee joint.

4. Abrasion 2 cm x 1 cm on distal part of right foot at back towards lateral side.'

In the opinion of D.W.1 Dr. R.N. Sharma, in respect of injury no.1, accused/appellant Hari Shanker Singh was referred to District Hospital, Raebareli; except injury no.1, all the injuries are simple in nature and caused by blunt object. The duration of injuries were four days old.

Injuries of accused/appellant Sharda Bux Singh :-

`1. Contusion 5 cm x 2 cm on medial aspect of right lower part of forearm.

2. Contusion 4 cm x 2 cm on lateral side of left ankle joint.

3. Contusion 3 cm x 2 cm on lateral side of right ankle joint.'

In the opinion of D.W.1 Dr. R.N. Sharma, all the injuries are simple in nature and caused by blunt object. The duration of injuries were four days old.

Injuries of accused/appellant Sardar Bahadur Singh :-

''1. Contusion 3 cm x 2 cm on back of right foot. Close to ankle joint.

2. Abrasion 1 cm x 1 cm on base of left big toe."

In the opinion of D.W.1 Dr. R.N. Sharma, all the injuries are simple in nature and caused by blunt object. The duration of injuries were four days old.

(32) It is significant to mention that in his deposition, in the trial Court, D.W.1 Dr. R.N. Sharma has reiterated the said cause of injuries and also stated therein that on 04.09.1981, he was posted as Medical Officer, District Jail, Raebareli. Except the injury no.1 sustained by the accused/appellant Hari Shankar Singh, all the injuries sustained by the accused/appellants could have been caused by blunt object like lathi and danda. At the time of examination, the injuries were four days old. The injuries could have been caused on 01.09.1981 at about 10:00 p.m. In respect of injury no.1 sustained by accused/appellant Hari Shanker Singh, he was referred for x-ray, a report of which has been enclosed with the injury report. He has prepared the injury report and also proved it Exts. Kha-1 to Kha.4.

In his cross-examination, D.W.1 Dr. R.N. Sharma has deposed that except injury no. 1 sustained by accused/ appellant and accused Bhagwat, all the injuries sustained by the accused/injured are superficial. He could not tell as to whether injuries no. 1 to 3 sustained by accused Bhagwat Singh could have been caused by falling or not. Injury no.4 sustained by accused Bhagwat Singh could not have been caused by falling because it was on middle of upper portion of foot.

He further stated that injuries no. 2 and 3 sustained by accused/appellant Hari Shanker Singh could have been caused either way by falling or by not falling. However, injury no.4 could not have caused by falling. Injury no.1 sustained by Hari Shanker is a lacerated wound. The lacerated wound could be caused by blunt weapon. He further stated that as Radiologist found radio opaque in the injury, therefore, he could not tell as to whether it could be caused by blunt object or not and this would be asked from the Radiologist. He did not find burn in the injury, which was round opening and, therefore, he suspected that it could be gunshot injury. Since the injury was opening round, therefore, he opined that it could not be caused by falling, however, it could be caused by falling on keel (thin piece of metal with one pointed end and one flat end).

In the cross examination, he also stated that injuries sustained by accused/appellant Bhagwati Singh, accused/ appellant Sharda Bux Singh and Sardar Bahadur Singh were on accessible parts, whrereas injuries sustained by accused/ appellant Hari Shankar Singh was on hand approachable parts. He denied the suggestions that he wrote the existing injury in the injury register and also wrote gun shot injury under the influence of the accused.

(33) D.W.2-Dr. M.M. Pratap, in his examination-in-chief, has stated that on 08.09.1981, he was the Radiologist in District Hospital, Raibareli. He did x-ray of the head of accused/appellant Hari Shankar under his supervision by the x-ray technician. He proved the x-ray examination plates Exts. 9 and 10 being taken of skull of accused Hari Shanker Singh and opined that one radio opaque shadow was found present in the skull. He proved the x-ray examination report (Ext. Kha.7) and opined that this radio opaque shadow can be of a pellet. However, he qualified this statement by saying that it confirmation could only be made by a ballistic expert.

(34) The case was committed to the Court of Session by the Chief Judicial Magistrate and the trial Court framed charge against accused/appellants Hari Shankar Singh, Bhagwat Singh, Shiv Baran Singh, Shiv Prasad Singh under Sections 148, 302/149, 323/149 and 395 of the Indian Penal Code, whereas accused/appellants Badri Singh, Amar Bahadur Singh, Sardar Bahadur Singh, Sharda Bux Singh, Jitendra Bahadur Singh, Indra Bahadur Singh alias Dhunni Singh, Shiv Narain Yadav and Indra Bahadur Singh son of Shitla Bux Singh under Sections 147, 302/149, 323/149 and 395 I.P.C.. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.

(35) The accused/appellants, in their statements under Section 313 of the Code of Criminal Procedure, have denied the prosecution evidence. Accused/appellant Hari Shanker, in his statement under Section 313 Cr.P.C., took the plea that on 01.09.1981, at about 10:00 p.m., the deceased Avadhesh Bahadur Singh and his party men attacked them. The villagers thought that miscreants have raided the village. He came out of his house. He was shot as a result of which he fell down. Even thereafter, the attackers continued beating him. He raised a hue and cry, upon which a number of villagers thinking that miscreants have attacked him challenged them. It was pitch dark. The neighbors inflicted injuries upon the attackers in order to save themselves. Injuries upon Avadhesh Bahadur Singh and others were inflicted in self defence. The persons who had participated in this brawl (Marpeet) were not seen by him from several days in the village. Injuries upon Avadhesh Bahadur Singh and others were inflicted by the villagers in self defence thinking them to be miscreants. Accused/appellant Bhagwat Singh took the plea that he was lying in front of the door of the house of Chattrapal Singh when 7-8 or 9 other persons came there. They inflicted injuries upon his hands and feet. Hari Shankar Singh came out of the house. He was shot. They raised an alarm shouting that miscreants have attacked them. The miscreants even then continued to inflict injuries upon them. The villagers in order to save their lives inflicted injuries upon these attackers.

(36) Accused/appellants Shiv Baran Singh, Shiv Prasad Singh and Badri Singh took the pleas under Section 313 Cr.P.C. that nothing took place in their presence. Accused/appellant Amar Bahadur Singh took plea that at the time of occurrence, he was at his house. He came to know that some miscreants have come at the house of Hari Shanker Singh. It was about 10 p.m. He reached there. It was pitch dark. Avadhesh Bahadur Singh was lying dead there. The miscreants had fled away. Accused/appellant Sardar Bahadur Singh, in his statement under Section 313 Cr.P.C., has stated that Avadhesh Bahadur Singh and others attacked them. The villagers though that miscreants had come. The villagers and neighbors rushed. There was brawl (Marpeet) between the villagers and these persons. Some of the miscreants fled away. Avadhesh Bahadur Singh could not run away. It was pitch dark. Persons who actually participated in this brawl (Marpeet) fled away from the village. Accused/appellant Sardar Bux Singh, in his statement under Section 313 Cr.P.C., has stated that he was sleeping at his house. In the night there was an uproar. The women of the house told him that dacoity is being committed. He also ran but could not recognize as to who were committing dacoity. Accused/appellant Jitendra Bahadur Singh, in his statement under Section 313 Cr.P.C., stated that he did not know anything about the occurrence and took a plea that he lives in another village. Accused/appellant Indra Bahadur Singh alias Dhunni Singh took a plea in a statement under Section 313 Cr.P.C. that at the alleged time of occurrence, he was not living in village Parmanpur. Accused/appellant Shiv Narain and Indra Bahadur Singh son of Shitla Bux Singh also stated that they live in another village and that they have been falsely implicated in this case.

(37) During trial, in all, the prosecution examined 11 witnesses in support of its case, whereas from the side of the defense, in all, two witnesses i.e. D.W.1- Dr. R.N. Sharma and D.W.2-Dr. M.M. Pratap, were examined. The evidences of P.W.6-Dr. Surendra Singh, who examined injured Smt. Ramraj Kumari and Dan Bahadur Singh (P.W.3), P.W.7-H.C. Raj Jas Yadav, who has proved the chik F.I.R. (Ext. Ka.7) and registered a case (Ext. Ka. 8), P.W.8-Ram Adhar Rawat, who has taken away the sealed corpse of the deceased for post-mortem, P.W.9-S.I. Hanoman Singh, who has investigated the case under Section 25 of the Arms Act against accused Bhagwat Singh, P.W.10-Dr. D.S. Shukla, who conducted the post-mortem of the deceased Awadhesh Bahadur Singh and P.W.11-S.I. Shyapal Singh Rana, who was the Investigating Officer of the case, and D.W.1- Dr. R.N. Sharma, who examined the accused/appellant/ injured Bhagwat Singh, Hari Shanker Singh, Sharda Bux Singh and Sardar Bahadur Singh and D.W.2-Dr. M.M. Pratap, who was the Radiologist and under his supervision, x-ray of skull of accused/appellant Hari Shankar Singh was made, have already been stated hereinabove.

(38) Now, we would like to deal with the evidence of informant P.W.1-Kunwar Bahadur Singh. Since in paragraph 13, 14, 15 and 16, we have set out the prosecution story primarily on the basis of the recitals contained in his examination-in-chief, for the sake of brevity, the same is not reiterated. P.W.1-Kunwar Bahadur Singh has deposed on oath that the house of Chattrapal in village Parmanpur is East faced. The main door of his house is towards East and another door of his house is towards Northern side. In front of this door, a passage running East-West direction is there. The Nabdan of Chattrapal is towards the Western side of the Northern door of his house. The said Nabdan is going towards Northern side of the house of Vilash Gaderiya. A Neem tree is there towards the Western side of Nabdan. A platform (chabutra) is in front of the western door of the house of Chattrapal Singh. The distance between the house of Chattrapal Singh and Bhagwat Gadariya is 200 paces towards east. The house of the P.W.1-Kunwar Bahadur Singh is at distance of about 127 paces towards the western side of the house of Chattrapal. The house of P.W.3-Dan Bahadur Singh is at a distance of 127 paces towards the western side. He also stated that P.W.3-Dan Bahadhur Singh is his grand father and elder brother of his father and Injured Ramraj Kumari is his aunt and is living East-North side at a distance of 40 paces from his house. The deceased Awadhesh Bahadur Singh is his real brother. Accused/appellants Bhagwat and Harishankar are the father and son, respectively. Accused/appellants Shiv Prasad Singh, Badri Singh and Amar Bahadur Singh are real brothers. Accused/appellants Indra Bahadur and Sharda Bux Singh are the real brothers. Accused/appellant Sharda Bux Singh is the cousin of accused/appellant Sardar Bahadur Singh. Accused appellants Jitendra Bahadur and Indra Bahadur Singh alias Dhunni are the real brother. Accused/appellant Vijay Bahadur Singh is the father of accused/appellant Sardar Bahadur Singh. Accused/appellant Shiv Baran Singh is the nephew of accused/appellant Bhagwat Singh.

(39) P.W.1-Kunwar Bahadur Singh has further deposed that Chattrapal Singh died after the incident and at that time, he was aged about 80 years. Accused/appellant Hari Shankar Singh is residing at the house of Chattrapal Singh. The relation between the accused/appellants and him (P.W.1) is not cordial and there is enmity between them. He stated that prior to 10-12 years ago, accused/appellant Sardar Bahadur Singh had implicated his father (Chandra Bhushan Singh) and his grand father (P.W.3. Dan Bahadur Singh) in a false case of highway robbery, in which they were acquitted. He also stated that accused/appellant Sardar Bahadur Singh had contested the election of Gram Pradhan against his grand-father (P.W.3-Dan Bahadur Singh), in which he was defeated. On account of this, the relations between the accused/appellants and his father (Chandra Bhushan Singh) and his family members were strained. It has also been stated that on the date of occurrence, Aalha was going on at about 06:00-06:30 P.M. in front of the house of Bhagwati Gadariya, in which besides other villagers, he (P.W.1 Kunwar Bahadur Singh), his brother (deceased Avadhesh Bahadur Singh), their father (Chandra Bhushan Singh) and accused/appellant Shiv Baran Singh were present. During the Aalha, his father (Chandra Bhushan Singh) asked accused/appellant Shiv Baran Singh to give him a bidi, to which accused/appellant Shiv Baran Singh told his father (Chandra Bhushan Singh) that if he was fond of taking bidi, he should purchase it, upon which his father (Chandra Bhushan Singh) retorted that you must not misbehave, to which accused /appellant Shiv Baran Singh abused his father (Chandra Bhushan Singh) and, thereafter, his brother Avadhesh Bahadur Singh (deceased) told accused/appellant Shiv Baran Singh as to why he abused his father (Chandra Bhusan Singh), upon which accused/appellant Shiv Baran Singh left from there by abusing him. Thereafter, his father (Chandra Bhushan Singh went to his house and thereafter, deceased Avadhesh Babadur Singh also started for his house. He (P.W.1), P.W.2-Tej Bahadur Singh, Peshkar Singh, Balwant Singh and Jai Singh also started for their respective houses behind deceased Avadhesh Babadur Singh at a distance of about 10-15 paces. At that relevant time, he (P.W.1), Jai Singh and P.W.2-Tej Bahadur Singh were carrying torches. It was about 08:30 p.m.

(40) P.W.1-Kunvar Bahadur Singh has further stated that when the deceased-Avadhesh Bahadur Singh reached near the Nabdan of the house of Chhatrapal, all the accused/appellants surrounded him. Accused/appellant Hari Shanker was armed with pistol; accused/appellant Bhagwat Singh and Shiv Baran Singh was armed with Kanta; accused/appellant Shiv Prasad Singh was armed with Ballam; and other accused/appellants were armed with lathis. Accused/appellant Hari Shanker Singh fired upon his brother Avadhesh Singh (deceased), upon which his brother Avadhesh Singh (deceased) fell down near the Nabdan. He did not know as to whether fire hit his brother or not, however, all the other accused/appellants started beating his brother with lathis, kanta and ballam. Thereafter, in the light of torches which he (P.W.1-Kunwar Bahadur Singh), P.W.2-Tej Bahadur Singh and Jai Singh were carrying, recognized the accused/appellants and they raised an alarm upon which his grand father P.W.3- Dan Bahadur Singh and his aunt Ramraj Kumari came to rescue his brother (deceased Awadhesh Bahadur Singh), upon which they had also assaulted them, as a consequence thereof, his grand father P.W.3- Dan Bahadur Singh and his aunt Ramraj Kumari had also sustained injuries. Thereafter, when his grand father P.W.-3 Dan Bahadur Singh and his aunt Ramraj Kumari were inflicting injuries by the accused/appellants, his brother Avadhesh Bahadur Singh (deceased) ran towards the eastern side of the house of Chhatrapal Singh and reached the passage near the Chabutra of Chatrapal Singh, then, accused/appellants had inflicted injuries upon his brother, as a result thereof, his brother succumbed to injuries on the spot. In the meantime, his father Chandra Bhushan Singh came with his licensee gun, upon which accused/appellants Bhagwat Singh, Shiv Baran Singh, Indra Bahadur Singh alias Dhunni Singh, Amar Bahadur Singh and others had snatched the licensee gun of his father near the house of Pancham Kumhar. He recognized the licensee gun (Ext. Ka.1) in the trial Court and on seeing the licensee gun, he has also stated that the Court Moharrir told him that the bundle in which this licensee gun was kept, was not sealed. He further stated that at about 09:30 p.m., his brother was murdered and licensee gun was snatched. He saw the whole incident in the light of torch. Accused/appellants are in his village and he knows all of them prior to it. He lodged the report (Ext.Ka. 1) by himself on 01.09.1981 at police station Bhadokhar. When the Inspector came on the spot, he shown his torch to him and after seeing it, Inspector returned it to him. The torch was in running condition.

(41) P.W.1-Kunvar Bahadur Singh, in his cross-examination, has deposed that he was studying in Sarvodaya Inter College. At that relevant time, he had given Intermediate examination and his result was withheld but in the month of December, 1981, his result was declared, in which he was passed. He had enmity with accused / appellant Sardar Bahadur Singh and other accused /appellants. The enmity was continuing since 10-12 years. He also had enmity with the family members of the accused/appellants and even he did not sit or eat with accused/appellants. Aalha was frequently organized in his village. He, his brother and his father have gone to listen Aalha when they were in village. The Aalha was started in front of the house of Bhagwati Gadariya on the date of the incident only and not prior to it. His father, grand-father and his brother Avadhesh were residing in one house. He further stated that in his house, lunch was taken between 11-12 in the afternoon and on the date of the incident, he took lunch at about 11:30 a.m. He also stated that he did not know as to which time Avadhesh Bahadur Singh (deceased) took lunch on the date of the incident. He was in the house after taking lunch and before going to listen Aalha. He and his brother Avadhesh Bahadur Singh had gone to listen Aalha after taking evening snack at about 06:00-06:30 p.m. and his father was gone to listen Aalha after about half an hour. He and his brother had listened Aalha at about 09:30 p.m. and by that time, Aalha had not ended. 50-60 persons including women and children were in the crowd, out of which 40-45 persons were male members. Bhagwati Gadariya was also present there. In his village, number of castes are living. When altercation took place during Aalha, the distance between him and his father was at about 5-6 paces. The person, who recited Aalha, came from Pratapgarh but he did not know his name. The persons, who were present at the time of Aalha, stopped accused/appellant Shiv Baran Singh to quarrel with his father. They had also stopped his father. When altercation took place, Aalha was stopped. The altercation was going on for atleast 2-3 minutes. Accused/appellant went from there by using abusive language and thereafter, all the persons sat there and Aalha was again started. He further stated that at the time of writing down the report and also at the time of recording his statement by the Investigating Officer, he had remembered that altercation took place on account of Bidi but the Investigating Officer did not ask him about the reason for altercation as he was satisfied. He further stated that in the statement recorded by the Investigating Officer and in the report, he did not tell and write about dispute over bidi because at the time of lodging report, he was quite nervous and the Investigating Officer did not ask him about the dispute, therefore, he did not tell the same to him. He further stated that there are two ways i.e. one road and one passage, between the house of Bhagwati Gadariya and his house. The passage went towards northern side of the house of Chattrapal Singh. There is a small pool next to the passage but there is no pond or any forest, however, there is one-two kothiya (cells) of bamboo. The second road went towards his house. In the house of Chattrapal, his daughter, his wife and one boy, namely, Hari Shanker (accused/appellant), were living. The house of accused/ appellant was 100 paces of northern side of the house of Chattrapal.

(42) P.W.1-Kunwar Bahadur Singh, in his cross-examination, has further deposed that the persons, who are residing near the house of Chattarapal, are in the party of the accused/appellants, therefore, he is jealous against them. He further stated that there is 100-125 houses in his village. 10-15 houses are of the party of the accused/appellants and most of the villagers do not care about anyone. Witnesses Jai Singh and Jawahar Singh are real brothers and Peshkar Singh was the son of his cousin. Ramesh is the real brother of Peshkar Singh. The husband of Ramraj Kumari was Chandra Bhan Singh. He further stated that as he listened Aalha for about 2-2:30 hours and then thought to eat food at home and, therefore, he got up from the Alaha and when Awadhesh (deceased) got up and started walking, he also joined him. The persons, who were sitting along with him, also stated to leave from there as their houses were also on the way from which he was going. They went in the light of the torch. He further stated that it was the month of Bhado and it was very dark. His brother (Awadhesh Bahadur Singh deceased) was 10-15 steps ahead of him, who was going in the dark and they were lighting the torch from behind him, some light of which was also going there. Neither he nor his companion tried to save his brother because they were unarmed and firing was going on.

(43) P.W.2-Tej Bahadur Singh, who is the witness of fact, in his examination-in-chief, has reiterated the happening of Aalha in front of the house of Bhagwati Gadariya and stated that he was going to the house of Bhagwati Gadariya for listening Alaha at about 07:00 p.m. and at that time, Alaha was going on. In the Alaha, number of persons of his village were present. P.W.1-Kunwar Bahadur Singh, his father Chandra Bhushan Singh, deceased Awadhesh Bahadur Singh and accused/appellant Shiv Baran Singh were also present there. At about 08:30 p.m., altercation took place between the deceased Avadhesh Bahadur Singh and his father Chandra Bhushan Singh with accused/appellant Shiv Baran Singh. Accused/appellant Shiv Baran Singh used abusive language for Avadhesh Bahadur Singh (deceased) and his father Chandra Bhushan Singh and after using abusive language, accused/appellant Shiv Baran Singh went from there. At about 09:30 p.m., Chandra Bhushan Singh got up and went from there. Thereafter, at about 09:30 p.m., Awadhesh Bahadur Singh (deceased) and behind him he, Kunwar Bahadur Singh (P.W.1), Balwant Singh, Peshkar Singh, Jai Singh, started to go towards their house. At that time, he, Kunwar Bahadur Singh (P.W.1) and Jai Singh were having torch in their hands and all of them were lighting torches. Avadhesh Bahadur Singh (deceased) was 10-15 paces ahead from them and when Avadhesh Bahadur Singh (deceased) reached near the napdan situated in the northern side of the house of Chattarpal Singh, then, accused/appellants Hari Shanker Singh, Shiv Baran Singh, Bhagwat Singh, Badri Singh, Shiv Prasad Singh, Amar Bahadur Singh, Sardar Bahadur Singh, Sarda Bux Singh, Indra Bahadur Singh, Jitendra Bahadur Singh, Indra Bahadur Singh alias Dhunni Singh and Shiv Narayan Yadav came there. Accused/appellant Hari Shanker was armed with pistol, accused/appellants Bhagwat Singh and Shiv Baran Singh were armed with Kanta and accused/appellant Shiv Prasad was armed with Ballam and other accused/appellants were armed with lathis. Accused/appellant Hari Shanker fired, as a consequence of which, deceased Avadhesh Bahadur Singh fell down near the Napdan and other accused/appellants inflicted blow upon him with lathi, Kanta and ballam. Thereafter, they and deceased Avadhesh Bahadur Singh raised alarm, upon which P.W.3-Dan Bahadur Singh and Ramraj Kumari (injured) reached there and tried to escape deceased Avadhesh Bahadur Singh. Thereafter, accused/appellants had assaulted P.W.3-Dan Bahadur Singh and Ramraj Kumari. Thereafter, on seeing the opportunity, Avadhesh Bahadur Singh (deceased) ran towards them in the eastern side of the house of Chattapal Singh. Thereafter, accused/appellants left Ramraj Kumari and P.W.3-Dan Bahadur Singh and came near Avadhesh Bahadur Singh (deceased). Thereafter, accused/appellants killed Avadhesh Bahadur Singh near the Chabutra of Chattrapal. In the meantime, Chandra Bhushan Singh (father of deceased and P.W.1) came from his house with his gun. Thereafter, four accused/appellants, namely, Bhagwat Singh, Shiv Baran Singh, Amar Bahadur Singh, Indra Bahadur Singh alias Dhunni, snatched the gun of Chandra Bhushan Singh. In the meantime, some of the villagers also came there. He saw the incident in the light of his torch and of Kunwar Bahadur Singh (P.W.1) and Jai Singh.

(44) In his cross-examination, P.W.2-Tej Bahadur Singh has deposed that during the incident, accused/appellant Hari Shanker was also lighting the torch towards Avadhesh Bahadur Singh (deceased) and also all around. He did not see the torch of any other of the accused/appellants. He denied the suggestion that he told the Investigating Officer that he recognized the accused/appellants in the lights of the torches. He further stated that at the time of firing, Avadhesh Bahadur Singh (deceased) was in eastern side of accused/appellant Hari Shanker Singh. Accused/appellant Hari Shanker Singh fired towards Avadhesh Bahadur Singh (deceased) from the distance of 5-6 paces. After firing, Avadhesh Bahadur Singh (deceased) fell down on that place. He further stated that he did not see as to whether blood was oozing out from Avadhesh Bhadur Singh immediately after firing or not. Accused/appellant Hari Shanker Singh did not receive any injury. They were 10-15 paces away from the place of incident, from where they raised alarm. He further stated that P.W.3-Dan Bahadur Singh and Ram Raj Kumari were assaulted while surrounding them by the accused/appellants, who were armed with lathis only. Before inflicting blow upon P.W.3-Dan Bahadur Singh and Ram Raj Kumari, accused/appellants had assaulted the deceased for 2-4 minutes. He denied the suggestion that he told the names of the accused/appellants due to enmity and he was not present on the place of incident.

(45) P.W.3-Dan Bahadur Singh, who is the injured witness and uncle of deceased and the complainant P.W.1-Kunwar Bahadur Singh, in his cross-examination, has deposed that on the date of incident, at about 09:30 p.m., he was sleeping at his door. On listening the fire of pistol as well as alarm of Avadhesh Bahadur Singh (deceased) and Kunwar Bahadur Singh (P.W.1), which coming out from eastern side of his house and napdan situated in the northern side of the house of Chatrapal Singh, he and Ramraj Kumari ran and when they reached near the Napdan situated in the northern side of the house of Chatrapal, then, they saw accused/appellant Hari Shanker was standing with pistol and accused/appellants Bhagwat Singh and Shiv Baran Singh with pharsa (spear), accused/appellants Shiv Prasad, Badri and Amar Bahadur with ballam and accused/appellants Indra Bahadur, Sharda Bux, Indra Bahadur, Indra Bahadur alias Dhunni Singh, Shiv Baran Singh Yadav and Jitendra Bahadur with lathis, were assaulted Avadhesh Bahadur Singh (deceased). When he and Ramraj Kumari asked them that what are you doing and why they beating up, then, they assaulted 5-6 lathis blow upon him and Ramraj Kumari, as a consequence of which, he and Ramraj Kumari sustained injuries. In the meantime, on seeing the opportunity, his nephew Avadhesh Bahadur Singh (deceased) ran towards the door of Chattrapal. Thereafter, accused/appellants left them and after surrounding Avadhesh Bahadur Singh (deceased) beaten him, as a consequence thereof, Avadhesh Bahadur Singh died on the spot. Thereafter, his younger brother Chandra Bhusan came with gun in the southern side of the house of Pancham and told the accused/appellants that they should not beat his son, otherwise, he would kill them with gun. Thereafter, he told his brother Chandra Bhushan not to fire, upon which accused/appellants Bhagwat Singh, Shiv Baran Singh, Amar Bahadur Singh, Indra Bahadur Singh alias Dhunni Singh, were snatching the gun from Chandra Bhushan Singh and after tussle, they snatched the gun from Chandra Bhushan Singh. In the meantime, about 15-20 persons came there and raised alarm in the southern side of the house of Prabhu Kumhar not to assault and they are coming. There were light of torches. P.W.2-Tej Bahadur Singh, P.W.1-Kunwar Bahadur Singh and Jai Singh were carrying torches and they were using lighting the torches in the eastern side and in the light of the torches, they saw the accused/appellants. The injuries sustained by him and Ramraj Kumari were medically examined at Sadar Hospital, Raibareli.

(46) P.W.3-Dan Bahadur Singh, in his cross-examination, has deposed that he and Chandra Bhushan Singh were residing in different houses and their food were made separately but no articles/items were partitioned between them. Prior to firing, Chandra Bhushan Singh came home at about 9:00 p.m. and was sleeping at 15-20 paces away from him. After listening fire, he did not say anything to Chandra Bhushan Singh and ran towards the house of Chatrapal Singh. His niece Avadhesh Bahadur Singh (deceased) and Kunwar Bahadur Singh (P.W.1) were shouting that they were being beaten. He listened the alarm when he went 3-4 paces. He further stated that when he got up from Khat and walked a little further, then, he listened the noise of Avadhesh Bahadur Singh (deceased) and Kunwar Bahadur Singh (P.W.1) that to run, they are being beaten, upon which they understood that they have been beaten. He did not call any person to help nor took any weapon because he has no weapon. He further stated that he did not listen the alarm that deceased Avadhesh Singh was being beaten. He further stated that at the time of incident, Chandra Bhushan Singh was sleeping and he got flustered and in the concern that there should be no quarrel, he came outside and he did not not call Chandra Bhushan. When he reached near the place of incident, then, he saw the scuffle. At that time, villagers were not coming and Kunwar Bahadur Singh (P.W.1) and Jai Singh and others had raised alarm and when firing was made, then, villagers, who wanted to help, did not come. Prior to assault, he was shouting but when he was beaten, then, he tried to escape himself by using hishand and at that time, he did not raise any shout for help. He further stated that 10-12 persons were beating in front of him. He and Ramraj Kumari were beaten for about one, two or half a minute. When accused/appellants were assaulting him, then, he saw Chandra Bhushan Singh, who was 25-30 paces from him. He further stated that Chandra Bhushan at a distance of 15-20 paces told the accused/appellants that he would fire and warned them not to beat Avadhesh Bahadur. At that time, the accused/appellants was eastern door of the Chattrapal Singh. At the time when accused/appellant Bhagwat Singh were snatching the gun, then, other accused/appellant inflicted blow upon Avadhesh and thereafter gathered beneath the tree of neem. He also stated that he did not see the torch with Kunwar Bahadur (P.W.1) when he wrote down the report. The report was written by Kunvar Bahadur (P.W.1) in the light of the lantern. He did not see the injuries on corpse but he saw the accused/appellants assaulting the deceased. He told the Investigating Officer that he saw the incident in the light of the torch but if he did not write about it, then, he did not tell anything. He denied the suggestion that there was no torch nor Jai Singh and Kunwar Bahadur Singh were present. On the date of incident, there was no cloud but the night was dark. He also denied the suggestion that accused/appellants had sustained injuries. He also denied the suggestion that he had falsely implicated the accused/appellants by telling false story.

(47) P.W.4-Baijnath Singh, who is the witness of recovery of gun of Chandra Bhushan Singh from accused/appellant Bhagwat Singh, in his examination-in-chief, has deposed that on 02.09.1981, the Investigating Officer recovered the gun from the house of accused/appellant Bhagwat Singh in his presence and one Jawahar Lal on pointing out of accused/appellant Bhagwat Singh.

(48) In his cross-examination, P.W.4-Baijnath has stated that on the report of accused/appellant Sardar Bahadur Singh, a case under Section 394 I.P.C. was lodged against his father Jeet Bahadur Singh. He further stated that in the said case, his father was acquitted. He also stated that at the time of recovery, he was standing at a distance of 15-20 paces from the Investigating Officer and the Investigating Officer had called him and Jawahar Singh by insinuate. He denied the suggestion that recovery of gun was not made in his presence and accused/appellant has been falsely implicated due to enmity.

(49) P.W.5-Dal Bahadur Singh, who is the witness of search of the house of Chattrapal Singh and accused/appellant Sharda Bux Singh, deposed that the Investigating Officer had searched the house of Chattrapal Singh, accused/appellants Sarda Bux Singh, Sardar Bahadur Singh and Hari Bux Singh in his presence at about 2:30 p.m. On the said date, the Investigating Officer has arrested the accused/appellant Sarda Bux Singh and after arrest, accused/appellant had handed over a lathi to the Investigating Officer, wherein blood was present.

(50) The learned trial Court, after hearing learned Counsel for the parties and gone through evidence on record, convicted and sentenced the accused/appellants in the manner as stated in paragraphs 6 and 7 hereinabove by the impugned judgment and order dated 15.07.1982/16.07.1982.

(51) Aggrieved by the aforesaid impugned judgment and order dated 15.07.1982/16.07.1982, the accused/appellants have preferred the above-captioned criminal appeals.

(52) We have heard Shri Jyotinjay Mishra, learned Senior Advocate, assisted by Sri Kapil Mishra, learned Counsel for the appellants no. 5 and 7 and Sri R.N. S. Chauhan, learned Counsel for the appellants no. 2, 3 and 4 in Criminal Appeal No. 546 of 1982, Sri R.C. Singh, holding brief of Sri Arun Sinha, learned Counsel for the appellant no.2 in Criminal Appeal No. 547 of 1982, Sri Kunwar Mridul Rakesh, learned Senior Advocate, assisted by Sri Santosh Srivastava, learned Counsel for the appellant in Criminal Appeal No. 548 of 1982, Sri Nagendra Mohan assisted by Sri Anil Kumar Tripathi, learned Counsel for the complainant and Ms. Nand Prabha Shukla, learned Additional Government Advocate for the State/respondents in all the above captioned appeals and have also perused, the depositions of the prosecution witnesses and defense witnesses; the material exhibits tendered and proved by the prosecutions, the statement of the appellants recorded under Section 313, Cr.P.C.; and the impugned judgment of the trial Court.

(53) Challenging the impugned judgment and order passed by the trial Court, Sri Jyotinjay Mishra, learned Senior Advocate appearing on behalf of the accused/appellants no.5 and 7 in Criminal Appeal No. 546 of 1982 has argued that the prosecution has suppressed the origin of the incident and the incident has not taken place in the manner as has been stated by the prosecution. He argued that in the F.I.R., it has been stated that complainant's brother, Avadhesh Bahadur Singh (deceased), went to his house at 09:30 p.m., whereas in his examination-in-chief, P.W.1-Kunwar Bahadur Singh, who is the complainant in the instant case and brother of the deceased, at one place has stated that when accused/appellant Shiv Baran went to his house while abusing his father, thereafter, his father (Chandra Bhushan Singh) and his brother (deceased Avadhesh Bahadur Singh) also went to their home and on other place, P.W.1-Kunwar Bahadur Singh has stated that his father (Chandra Bhushan Singh) went to home half an hour ahead of the deceased Avadhesh Singh and him. This shows the contradiction in the statement of P.W.1-Kunwar Bahadur Singh and also doubts his presence at the place of occurrence. He further argued that when the presence of the complainant P.W.1-Kunwar Bahadur Singh is itself a contradictory one and doubtful, hence his testimony cannot be considered as trustworthy. He also argued that P.W.1-Kunvar Bahadur Singh and P.W.2-Tej Bahadur Singh are not the injured witnesses and also did not try to save his brother Avadhesh Bahadur Singh (deceased) and P.W.3-Dan Bahadur Singh (injured) and Ramraj Kumari (injured), hence the testimony of P.W.1-Kunvar Bahadur Singh and P.W.2-Tej Bahadur Singh cannot be believed. Thus, the trial Court has committed a grave error in convicting the accused/appellants, relying upon the depositions of PW1-Kunwar Bahadur Singh and PW2-Tej Bahadur Singh.

(54) Shri Mishra has further argued that according to the prosecution, earlier accused/appellant Sardar Bahadur Singh had implicated Chandra Bhushan Singh (father of the deceased Awadhesh Bahadur Singh) and his elder brother P.W.3-Daan Bahadur Singh (injured witness) in a case of Highway Robbery about 10-12 years back in which they were acquitted. He further argued that accused/appellant Sardar Bahadur Singh had fought election against P.W.3-Daan Bahadur Singh (uncle of the deceased Avadhesh Bahadur Singh) for the post of Pradhan of village in which accused/appellant Sardar Bahadur Singh was defeated and for these reasons, the relations between the accused/appellant on one hand and Chandra Bhushan Singh (father of the deceased) and his family members on the other hand, were strained. He further stated that as per prosecution, on the alleged date of occurrence i.e. on 01.09.1981, Aalha was going on at the house of one Bhagwati Gadariya in the village Parmanpur, District Raebareli. Accused/appellant Shiv Baran Singh and other other persons of the village were present in the Aalha. The complainant Kunwar Bahadur Singh (P.W.1), his brother Avadhesh Bahadur Singh (deceased) and his father Chandra Bhushan Singh had gone to the house of Bhagwati Gadariya to hear Aalha. During the course of hearing Aalha, Chandra Bhushan Singh (father of the deceased) asked Biri from the accused/appellant Shiv Baran Singh, upon which some heated arguments took place between accused/appellant Shiv Baran Singh and Chandra Bhushan Singh (father of the deceased). It is alleged that after heated arguments, accused/appellant Shiv Baran Singh left the place and went towards his house. The complainant and his family members also left the place and after sometime, the instant alleged incident took place. His submission is that as per the prosecution case itself, there were enmity between the complainant's side and appellant's side, therefore, it is highly improbable that complainant's father, Chandra Bhushan Singh, would ask for Biri from the accused/appellant Shiv Baran Singh, hence the prosecution case is fabricated one.

(55) Elaborating his submission, Mr. Mishra has argued that it is an admitted position that there was an enmity prior to the disputes between the accused/appellants and the family of the deceased. Thus, there are all possibility of falsely implicating the accused/appellants.

(56) Sri Mishra has stated that Chandra Bhushan Singh (father of the deceased) with whom the alleged altercation between the accused/appellant Shiv Baran Singh took place on account of Biri issue, has not been produced by the prosecution in support of its case. Furthermore, Bhagwati Gadariya at whose house Aalha was going on, has also not been produced by the prosecution in support of its case to prove the genesis of the incident.

(57) Mr. Mishra has also argued that P.W.1-Kunwar Bahadur Singh has stated in his statement that accused/appellant Hari Shanker Singh fired single shot upon the deceased Avadhesh Bahadur Singh as a result of which the deceased Avadhesh Bahadur Singh had fallen down near ''Napdaan' of Chattrapal's house but on perusal of the post-mortem report of the deceased Avadhesh Bahadur Singh would show that no fire arm injury was found by P.W.10-Dr. D.S, Shukla, who conducted the post-mortem of the deceased Avadhesh Bahadur Singh. Moreso, pistol, which has been recovered, has not been sent for examination from the Ballistic Expert.

(58) Sri Mishra has further stated that P.W.1-Kunwar Bahadur Singh has stated that at the time of the incident, it was the month of Bhado and the night was very dark, therefore, it is highly improbable to identify the person who has allegedly fired a single shot, in the light of the torch. He also argued that P.W.1-Kunwar Bahadur Singh has stated that gun of his father (Chandra Bhushan Singh) was snatched by the accused/ appellants but the name(s) of the accused/ appellants, who snatched the gun, has not been disclosed in the report as well as number of persons involved in snatching the gun.

(59) Shri Mishra has next submitted that as per the prosecution, some of the witnesses including P.W.1-Kunwar Bahadur Singh were having torches in their hands and in the light of torches, he and other witnesses saw the whole incident but surprisingly, the Investigating Officer P.W.11 Shyampal Singh Rana has not prepared any memo for torches of the prosecution witnesses. He argued that it is alleged that the prosecution witnesses have seen the whole incident in the light of torches and if that is so, it is quite impossible to see the incident and recognized the persons who assaulted the deceased and also specify the specific role of each of the accused/appellants. He also argued that as per the site plan, distance between the house of the complainant and place of incident is about 127 paces and P.W.1-Kunwar Bahadur Singh and P.W.2-Tej Bahadur Singh, in their statement, has deposed that at the time of the incident, Awadhesh Bahadur Singh (deceased) was 10-15 paces ahead and in the dark night of Bhado month, from a distance of 10-15 paces, it is unlikely to witness the entire incident and also identity the accused/ appellants in the light of the torch. Thus, version of the P.W.1-Kunwar Bahadur Singh and P.W.2-Tej Bahadur Singh cannot be relied.

(60) Sri Mishra has further stated that the prosecution has failed to explain the injuries upon the persons of the accused/appellants. He argued that P.W.7 Head Moharrir Ramjas Yadav, who has written chik F.I.R. of the case (Ext. Ka.7) and also prepared G.D. entry of the F.I.R. (Ext. Ka.8), has stated that four accused/appellants, namely, Bhagwat Singh, Hari Shanker Singh, Sharda Bux Singh and Sardar Bahadur Singh, were brought to the police station Bhadokhar, Raibareli in injured conditions on 01.09.1981, though their injuries were noted in the G.D. of the Police Station but they were not sent for medical examination by the police. This shows the bias attitude of the police personnel against the accused personnel. He further submits that D.W.1-Dr. R.N. Sharma had medically examined four injured accused/appellants, namely, Bhagwat Singh, Hari Shanker Singh, Sharda Bux Singh and Sardar Bahadur Singh and after examination, D.W.1-Dr. R.N. Sharma opined that accused/appellant Hari Shanker Singh had received one gunshot injury on his forehead above right eyebrow and as per the statement of D.W.2-Dr. M.M. Pratap, the X-ray of accused/appellant Hari Shanker Singh shows that there was a radio-opaque shadow, found on the right of accused/appellant Hari Shanker Singh. Thus, in view of the statements of D.W.1-Dr. R.N. Sharma and D.W.2-Dr. M.M. Pratap, it is apparent that the fire arm injury received by the accused/appellant Hari Shanker Singh could not be self-inflicted. Therefore, the entire prosecution story cannot be believed and the same is liable to be brushed aside.

(61) Mr. Mishra has next argued that as a matter of fact, an incident took place in village Parmanpur, District Raebareli on 01.09.1981 at night in which a free fight ensued between two groups, in which both sides received injuries. Avadhesh Bahadur Singh died on account of the injuries received by him and according to the prosecution, two persons, namely, Dan Bahadur Singh (P.W.3) and Ram Raj Kumari had allegedly received some injuries on one hand and four accused/appellants had received injuries on the other side. He argued that the prosecution had denied having seen the injuries of the accused/appellants and pleaded ignorance. He further argued that with regard to the injuries of four accused/appellants, whose injuries have been duly proved by D.W.1-Dr. R.N.Sharma and D.W.2-Dr. M.M. Pratap, the police after the arrest did not sent the injured accused/appellants for their medical examination, which shows the ulterior motive in order to conceal the true facts of the case. He argued that the villagers of Village Parmanpur where the incident took place came to the rescue of the accused/appellants and exercised the right of the private defence in order to save the accused/appellants as a result of which some persons on the side of the prosecution had received injuries. He further argued the prosecution has not produced the alleged injured Smt. Ram Raj Kumari in support of the prosecution case.

(62) Sri R.N. S. Chauhan, learned Counsel for the appellants no. 2, 3 and 4 in Criminal Appeal No. 546 of 1982 and Sri Kunvar Mridul Rakesh, learned Senior Advocate, assisted by Sri Santosh Srivastava, learned Counsel for the appellant in Criminal Appeal No. 548 of 1982 have stated that they have adopted the arguments advanced by Sri Jyotinjay Mishra and they have nothing to say in addition in the matter.

(63) Sri R.C. Singh, holding brief of Sri Arun Sinha, learned Counsel for the appellant no.2 in Criminal Appeal No. 547 of 1982 has also reiterated the submissions advanced by Sri Jyotinjay Mishra and has argued that statements of the accused/appellants recorded by the trial Court under Section 313 Cr.P.C. are missing from the record of the case, however, in paragraph-14 of the impugned judgment, the defense version taken by the different accused/appellants has been mentioned. Accused/ appellant Sharda Bux singh (of Criminal Appeal No. 547 of 1982) was said to be armed with a lathi at the time of the alleged incident. He argued that the conviction of the accused/appellants with the help of Section 149 I.P.C. is not sustainable inasmuch as it is well settled law that Section 149 I.P.C. cannot be invoked when it is a case of self defense. He also argued that it is also well settled law that more injuries on the side of the prosecution is not a proof of aggression by defence, the prosecution may have bargained for the injuries. To strengthen his submission, he has placed reliance upon the judgment of the Apex Court in Arjun Pradhan and another Vs. State of Orissa : AIR 1979 (SC) 1259, Gotti Pulla Venkete Siva Vs. State of Andhra Pradesh and another : 1970 AIR 1079, Munshi Ram and others Vs. Delhi Administration : 1968 AIR 702, James Martin Vs. State of Kerala : 2004 ( 2) SCC 203 and Lakshmi Singh and others Vs. State of Bihar : AIR 1976 (SC) 2263.

(64) Per contra, Ms. Nand Prabha Shukla, learned Additional Government Advocate, has supported the impugned judgment and while controverting the arguments advanced by the learned Counsel for the appellants has vehemently submitted that in the facts and circumstances of the case, there is no error in the impugned judgment and order dated 15.07.1982/16.07.1982 passed by the trial Court convicting the accused/appellants, relying upon the depositions of PW1-Kunwar Bahadur Singh, PW2-Tej Bahadur Singh and P.W.3-Dan Bahadur Singh (injured). It is submitted that PW1-Kunwar Bahadur Singh, P.W.2-Tej Bahadur Singh and P.W.3-Dan Bahadur Singh are trustworthy and reliable witnesses. It is submitted that their presence at the time of incident has been established and proved by the prosecution by examining PW1-Awadhesh Bahadur Singh, P.W.2-Tej Bahadur Singh and P.W.3-Dan Bahadur Singh. It is submitted that PW1-Awadhesh Bahadur Singh, P.W.2-Tej Bahadur Singh and P.W.3-Dan Bahadur Singh have been fully and thoroughly cross-examined and considering the entire evidence/deposition of PW1-Awadhesh Bahadur Singh, P.W.2-Tej Bahadur Singh and P.W.3-Dan Bahadur Singh, their presence at the time of incident has been established and proved. It is submitted that on appreciation of entire evidence on record, the trial Court has rightly convicted and sentenced the accused/appellants.

(65) Elaborating her submissions, Ms. Shukla has submitted that in the instant case, the motive has also been established and proved. It is submitted that the defence has failed to establish and prove that they were falsely implicated in the case. She argued that nothing is on record and there is no evidence on record to even suggest that accused/appellants did not cause injuries on the deceased by the time he died. She argued that the defence is not borne out at all either from the deposition of PW1-Awadhesh Bahadur Singh, P.W.2-Tej Bahadur Singh and P.W.3-Dan Bahadur Singh. Therefore, the prosecution has fully established and proved that on 01.09.1981, the deceased, PW1-Awadhesh Bahadur Singh and P.W.2-Tej Bahadur Singh were present at the place of occurrence and P.W.3-Dan Bahadur Singh, on hearing the alarm, also reached the place of occurrence and he and Ramraj Kumari were also beaten by the accused/appellants and the incident of assault to P.W.3-Dan Bahadur Singh and Ramraj Kumari were also seen by P.W.1-Avadhesh Bahadur Singh and P.W.2-Tej Bahadur Singh. She has further submitted that recovery of weapon/weapons used by the accused/appellants have been established and proved. Even the accused/appellants did not lead any evidence to prove that they were not present on the spot at the time of incident and that they were present elsewhere. Hence, there is no illegality or infirmity in the impugned judgment of the trial Court.

(66) To strengthen her submissions, Ms. Shukla, learned Additional Government Advocate has placed reliance upon Jagdish Vs. State of Rajasthan : 1979 AIR 1010, Onkarnath Singh and others Vs. The State of U.P. : 1975 (3) SCC 276, Lalji and others Vs. State of U.P. : 1989 JIC 172 (SC) and Kattukulangara Madhavan Vs. Majeed and others : (2017) 2 SCC (Cri) 611.

(67) Sri Nagendra Mohan assisted by Sri Anil Kumar Tripathi, learned Counsel for the informant has reiterated the submission of the learned Additional Government Advocate and has vehemently argued that the evidences of PW1-Kunvar Bahadur Singh, P.W.2-Tej Bahadur Singh and P.W.3-Dan Bahadur Singh are credible. He argued that their presence at the time of incident has been established and proved. He further argued that PW2-Tej Bahadur Singh has consistently stated that at the time of the incident, he and PW1-Kunvar Bahadur Singh were behind 10-15 paces from the deceased Avadhesh Bahadur Singh and saw that when deceased Avadhesh Bahadur Singh reached near the Napdan of Chattrapal Singh, accused/appellants armed with pistol, kanta, ballam and lathis surrounded the deceased-Avadhesh Bahadur Singh and he witnessed the accused/appellant Hari Shanker Singh shooting the deceased, on which deceased fell down near Napdan of Chattrapal Singh and, thereafter, other accused/persons assaulted the deceased with Kanta, ballam and lathis. He has argued that there might be some minor contradictions but it is settled law that minor discrepancies should not be given undue importance that don't go to the root of the matter.

(68) So far as the submission on behalf of the accused/appellants that gun was examined by the ballistic expert, it is argued by the learned Counsel for the informant that even if the gun was not sent to ballistic expert and if the statements of the witnesses have inspired the confidence of the Court and have been held to be credible and reliable, then, not sending the gun to ballistic expert cannot be the basis of rejecting the evidence of a eye-witnesses P.W.1-Avadhesh Bahadur Singh and P.W.2-Tej Bahadur Singh and injured witness P.W.3-Dan Bahadur Singh.

(69) So far as the submissions of the accused/appellants that it has been alleged that accused/appellant Hari Shanker Singh fired with gun but there is no injury of gun shot in the post-mortem report of the deceased, Sri Mohan has vehemently argued that when PW1-Kunvar Bahadur Singh and P.W.2-Tej Bahadur Singh have specifically stated that it was the accused/appellant Hari Shanker Singh, who fired, as a result, deceased fell down immediately and it might be that the gun shot went missing but the fact that both P.W.1-Avadhesh Bahadur Singh and P.W.2-Tej Bahadur Singh have categorically stated that when accused/appellant Hari Shanker Singh fired, deceased immediately fell down and other accused/appellants assaulted him with kanta, ballam and lathis and this has also been supported by the injured witness i.e. PW3 Dan Bahadur Singh. Thus, the evidences of PW1, PW2 and PW3 are fully supported by the medical evidence.

(70) Sri Mohan has further argued that there is a recovery of weapons (gun, kanta, ballam and lathis) on the pointing out of the accused/appellants, which were used by accused/appellants for commission of the offence. Therefore, there is no perversity or infirmity in the impugned judgment and order of conviction and sentence imposed by the trial Court against the accused/appellants.

(71) Sri Mohan has also contended that the fact that Alaha was going on in front of the house of Bhagawati Gadariya, is not in dispute. P.W.1-Kunwar Bahadur Singh and P.W.2-Tej Bahadur Singh are the eye-witnesses, whereas P.W.3-Dan Bahadur Singh and Ramraj Kumari are the injured. He argued that the defense case is that on one hand, accused/appellants were assaulted by the complainant's party and in defense, the villagers caused injuries to the deceased, on account of which, the deceased died and on the other hand, the case of the defense is that on the date of incident, night was very dark but even then, they recognized the complainant's party, which is unnatural conduct. He further argued that one of the accused has taken plea that his wife and ladies told him that dacoity is being committed at the house of Chhatrapal and immediately thereafter, he rushed to the place of occurrence. He argued that the alleged injuries sustained by the accused/appellants are absolutely false and cannot be reliable as all the injuries appears to be manufactured. He argued that the aforesaid plea has rightly been dealt with by the trial Court in paragraphs 34, 35 and 36 of the impugned judgment.

(72) Sri Mohan has further argued that the prosecution witnesses have asserted that they saw the entire incident in the light of the torches carrying at the time of incident by the accused/appellant and the prosecution witnesses. He argued that even if it is presumed that in the light of the torch, prosecution witnesses cannot be recognize the accused/ appellants as there was dark night, then, it is also highly improbable that the accused/appellant can also not seen the prosecution witnesses at the time of incident. He argued that all the accused/appellants and prosecution witnesses are in same village and known to each other. Thus, the contention of the appellants that in the light of torches, it is improbable to identify the accused/ appellants in the dark night of bhado month, cannot be believed, hence the defense taken by the appellants in this regard is liable to be rejected.

(73) We have heard the learned counsel for the respective parties and have carefully gone through the impugned judgment and order of conviction and sentenced passed by the learned trial Court and have also re-appreciated the entire evidence on record, more particularly the depositions of PW1, PW2 and PW3 and also considered the injuries found on the dead body of the deceased Avadhesh Bahadur Singh, injured persons (P.W.3-Dan Bahadur Singh and Ramraj Kumari) as well as accused/ appellants Sardar Bahadur Singh, Sharda Bux Singh, Hari Shanker Singh and Bhagwat Singh.

(74) From the judgment and order passed by the learned trial Court, it appears that while convicting the accused/appellants, the trial Court has heavily relied upon the depositions of PW1-Kunwar Bahadur Singh, PW2-Tej Bahadur Singh and PW3-Dan Bahadur Singh. PW1-Kunvar Bahadur Singh and PW2-Tej Bahadur Singh are stated to be the eye-witnesses of the incident. P.W.3-Dan Bahadur Singh, who is real uncle of the deceased and Ramraj Kumari, who is aunt of the deceased, are injured witnesses, however, injured Ramraj Kumari was not examined. P.W.4-Baij Nath Singh and P.W.5-Dal Bahadur Singh are the witnesses of recovery. P.W.6-Dr. Surendra Singh has medically examined injured P.W.3-Dan Bahadur Singh and Ramraj Kumari. P.W.7-H.C. Ramjas Yadav has written chik F.I.R. of the case (Ext. Ka.7) and also prepared G.D. entry of the F.I.R. P.W.8-Constable Ram Adhar Rawat has taken sealed dead body of the deceased Avadhesh Bahadur Singh for post-mortem from the place of the incident. P.W.9-S.I. Hanuman Singh was the Investigating Officer to investigate the case under Section 3/25 of the Arms Act against accused/appellant Bhagwat Singh. P.W.10-Dr. D.S. Shukla has conducted post-mortem of the deceased Avadhesh Bahadur Singh and P.W.11-S.I. Shyam Pal Singh Rana was the Investigating Officer of the case. D.W.1-Dr. R.N. Sharma has medically examined accused/appellants Bhagwat Singh, Hari Shankar Singh, Sharda Bux Singh, Sardar Bahadur Singh. D.W.2-Dr. M.M. Pratap was the radiologist, who has prepared X-ray plate/X-ray report of the injured accused/appellant Hari Shanker Singh.

(75) There is no denial to the fact that accused/appellant Bhagwat Singh is the son of the accused/appellant Hari Shanker Singh; accused/appellants Shiv Prasad Singh, Badri Singh and Amar Bahadur Singh are the brothers; accused/appellants Indra Bahadur and Sharda Bux Singh are the real brothers; accused/appellant Sardar Bahadur Singh is the cousin brother of the accused/appellant Sharda Bux Singh; accused/appellant Jitendra Bahadur and Indra Bahadur Singh alias Dhunni are the real brothers; accused/appellant Vijay Bahadur Singh is the father of accused/appellant Sardar Bahadur; accused/appellant Shiv Baran Singh is the nephew of accused/appellant Bhagwat Singh; and accused/appellant Shiv Narayan is the friends of other accused/appellants.

(76) So far as the date, time and place of the incident, the trial Court has found that the witnesses of fact i.e. P.W.1-Kunvar Bahadur Singh and P.W.2-Tej Bahadur Singh have not been cross-examined in their statement relating to date, time and place of the incident. Further, the Investigating Officer P.W.11-S.I. Shyam Pal Singh Rana has deposed in his examination-in-chief that when he reached at the place of the incident, he saw that the deadbody of the deceased Avadhesh Bahadur Singh was lying near the house of Chattrapal Singh. The defence was not suggested in the cross-examination from P.W.11-S.I. Shyam Pal Singh Rana that Avadhesh Bahadur Singh (deceased) was done to death at some other place and his dead body was dragged and placed near the house of Chattrapal Singh. However, some of the accused/appellants, in their statement under Section 313 of the Code of Criminal Procedure, has categorically stated that they were attacked by the miscreants at the place of occurrence, upon which villagers on thinking that a dacoity is being committed, inflicted injuries upon the attackers, as a consequence of which Avadhesh Bahadur Singh died. In these backgrounds, the trial Court, while appreciating the evidence on record, that the occurrence took place upon the date, time and place as alleged by the prosecution has been established.

(77) So far as motive of the accused/appellants to commit the crime is concerned, P.W.1-Kunwar Bahadur Singh and P.W.2-Tej Bahadur Singh have deposed in their deposition that before about 10 to 12 year, accused/appellant Sardar Bahadur Singh had implicated Chandra Bhushan Singh (father of the deceased) and P.W.3-Dan Bahadur Singh in a false case of highway robbery, in which they were acquitted and further accused/appellant Sharda Bux Singh also contested election for the Pradhan of Gaon Sabha, in which he was defeated. The trial Court, on appreciating the aforesaid two incidents, has rightly came to the conclusion that relations between the side of the complainant and the side of the accused/appellants were not cordial.

(78) In respect of immediate motive for the accused/appellants to commit the crime, it transpires from the record that during the course of Aalha, which was going on in front of the house of Bhagwati Gadariya on the date of the incident, the father of the deceased, Chandra Bhushan Singh, asked biri from accused/ appellant Shiv Baran Singh, upon which some altercation took place between them and, thereafter, after abusing Chandra Bhushan Singh (father of the deceased) left away from the place of Aalha. The accused/appellants, in their statement under Section 313 Cr.P.C., did not deny the holding of Aalha in front of the house of the Bhagwati Gadariya. P.W.1-Kunwar Bahadur Singh and P.W.2-Tej Bahadur Singh, in their examination-in-chief, have categorically deposed that Aalha was held in front of the house of the Bhagwati Gadariya and even P.W.3-Dan Bahadur Singh, who is the injured witness, in his cross-examination, has deposed that though an invitation for Aalha was given to him but he did not go to listen Aalha. The defence has not suggested in their cross-examination that no Aalha was held at the house of Bhagwati Gadariya. The testimonies of P.W.1, P.W.2 and P.W.3 have clearly established that Aalha was held in front of the house of Bhagwati Gadariya, hence, the contention of the applicants/appellants that examination of the Bhagwati Gadariya is necessary to prove the fact that Aalha was held in front of his house, is not sustainable, therefore, it cannot be said that merely not examining Bhagwati Gadariya, any adverse inference can be drawn against the prosecution.

(79) So far as the contention of the learned Counsel for the applicants/appellants that since the relations between the side the accused/appellants and the said of complainant were not cordial rather strained, hence in such a situation, father of the deceased, Chandra Bhushan Singh, would not have demanded a biri from the accused/appellant Shiv Baran Singh, the Trial Court has found from perusal of the evidence on record that it does not appear that two parties were not even on speaking term, therefore, it is not improbable that Chandra Bhushan Singh demanded Biri from accused/appellant Shiv Baran Singh, who was sitting nearby. This finding of the trial Court has substance as P.W.1-Kunwar Bahadur Singh and P.W.2-Tej Bahadur Singh have clearly stated that biri was asked by Chandra Bhushan Singh during the course of Aalha. The defense has not suggested in cross-examination to P.W.1 and P.W.2 that no biri was asked by Chandra Bhushan Singh from accused/appellant Shiv Baran Singh at the time of Aalha, which shows the admission on the part of the accused/appellants that biri was asked by Chandra Bhushan Singh from the accused/appellant Shiv Baran Singh at the time of Aalha.

(80) The other contention of the learned Counsel for the applicants/appellants is that Chandra Bhushan Singh, father of the deceased, was not examined. From perusal of the evidence on record, it transpires that P.W.1-Kunwar Bahadur Singh, in his cross-examination, has deposed that accused/appellant Shiv Baran Singh was so annoyed and left the place of Aalha by abusing them and their father and further he and his brother Avadhesh Bahadur Singh rebuked Shiv Baran Singh for his behavior towards their father Chandra Bhushan Singh and also accused/appellant Shiv Baran Singh used harsh words against them. At that relevant time of altercation, apart from other villagers, P.W.1-Kunwar Bahadur Singh and P.W.2-Tej Bahadur Singh were present, hence the Trial Court has rightly came to the conclusion that it was not necessary for the prosecution to examine Chandra Bhushan Singh in order to corroborate the prosecution case about the motive for the accused/appellant to commit the crime.

(81) The next contention of the learned Counsel for the applicant/ appellants is that the reason for altercation has not been disclosed in the F.I.R. by the complainant/P.W.1-Kunwar Bahadur Singh and further in the F.I.R., it has not been mentioned as to which time Chandra Bhushan Singh has left the place of Aalha. This Court is of the view that this contention of the learned Counsel for the accused/appellants has no force. In the case of Supdt. of Police, CBI v. Tapan Kumar Singh :(2003) 6 SCC 175 and in the case of State of U.P. v. Naresh : (2011) 4 SCC 324, the Apex Court has held that FIR is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. In paragraph 20 in the case of Supdt. of Police, CBI v. Tapan Kumar Singh (supra), the Apex Court has held as under :-

20. It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence.

At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details he must find out those details in the course of investigation and collect all the necessary evidence.

The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation.

The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can."

(82) So far as the submission of the learned Counsel for the accused/appellants that P.W.1-Kunwar Bahadur Singh was a got up witness as he was not present at the time of place of occurrence and he had no injury on his person and if he was present at the place of incident, he would have definitely tried to save his brother Avadhesh Bahadur Singh (deceased), his grand-father P.W.3-Dan Bahadur Singh and his aunt Ramraj Kumari from the assault of the accused/appellants. This argument of the learned Counsel for the applicants/appellants have also no force for the reason that twelve persons/accused/appellants were armed with pistol, kanta, ballam and lathis and at that relevant time, P.W.1-Kunwar Bahadur Singh was unarmed, therefore, in these circumstances, if he would have gone to save his brother Avadhesh Bahadur Singh (deceased), his grand-father P.W.3 Dan Bahadur Singh and his aunt Ramraj Kumari, then, he would have also been inflicted injuries and probably gotten killed and if his instinct of self preservation prevented him from going to save his brother, his grand-father and his aunt, his presence cannot be doubted. P.W.1-Kunwar Bahadur Singh, in his statement, has deposed that on seeing that accused/appellants have started to assault with their respective weapons to his brother Avadhesh Bahadur Singh, he raised alarm and on hearing his alarm, his grand-father P.W.3-Dan Bahadur Singh and his aunt Ramraj Kumari ran towards the place of occurrence and tried to save his brother Avadhesh Bahadur Singh but they were also beaten by the accused/appellants. P.W.3-Dan Bahadur Singh has also supported the aforesaid version of P.W.1-Kunwar Bahadur Singh that he and Ramraj Kumari, on listening the noise of fire and alarm of P.W.1-Kunwar Bahadur Singh, ran towards the place of occurrence in order to save Avadhesh Bahadur Singh. Thus, the presence of P.W.1-Kunwar Bahadur Singh at the place of occurrence cannot be doubted.

(83) Another submission of the learned Senior Counsel for the accused/appellants is that P.W.1-Kunwar Bahadur Singh did not disclose the names of the accused/appellants, who was alleged to have snatched the gun of Chandra Bhushan Singh nor he disclosed the weapon held by the individual accused/appellants nor he knows about the presence of the cartridge of his father nor he disclosed the name the assailants of his brother (deceased), his grand-father (P.W.3) and his aunt injured Ramraj Kumari not tell the names of the person gathered at the time of occurrence, hence the presence of P.W.1 is doubtful and moreso it is quite improbable to identify the persons in a dark night from the distance of 10-15 paces. This contention of the learned Counsel for the applicants/appellants has also no force. It is a specific case of the prosecution that there was no source of light except the torches that have been carried out by P.W.1-Kunwar Bahadur Singh, P.W.2-Tej Bahadur Singh, Jai Singh and one of the accused and all these persons including other accused/appellants were at same village and they knows each other very well even their body language were known to each other. In the situation of dark night, if P.W.1-Kunwar Bahadur Singh did not identify as to who amongst the accused/appellants were actually inflicting his brother Avadhesh Bahadur Singh, his grand father P.W.3-Dan Bahadur Singh and his aunt Ramraj Kumari, this cannot make any difference as in the cross-examination, P.W.1-Kunwar Bahadur Singh have specifically deposed that after the occurrence, he saw his brother Avadhesh Bahadur Singh dead and then he neither touch him nor did he move him from that place. If P.W.1-Kunvar Bahadur Singh was not touching or moving his brother Avadhesh Bahadur Singh till the police arrived at the place of occurrence, it cannot be presumed that his conduct was improbable. Moreso, when P.W.3-Dan Bahadur Singh and aunt Ramraj Kumari were coming to save Avadhesh Bahadur Singh, then, they were also inflicting by lathis by the accused/ appellants, which are corroborated with their injury report.

(84) So far as the submissions of the learned Counsel for the accused/appellants that all three witnesses i.e. P.W.1, P.W.2 and P.W.3 are having relations and no independent witness has been examined, therefore, the adverse inference can be drawn against the prosecution, it is relevant to mention here that it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.

(85) In Dalip Singh and Ors. Vs. The State of Punjab : [1954] 1 SCR 145, the Apex Court has laid down as under:

"27. 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."

(86) The Apex Court in Kartik Malhar v. State of Bihar : (1996) 1 SCC 614 has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.

(87) In the instant case, the FIR was lodged in the police station and while lodging it, there is no consultation with any other person in lodging the FIR. The accused/appellants were named in the FIR. The evidence of the complainant Kunvwar Bahadur Singh PW-1 has been fully supported by Tej Bahadur Singh PW-2 and injured Dan Bahadur Singh PW-3. This clearly shows the presence of P.W.1-Kunwar Bahadur Singh on the spot.

(88) Having gone through the entire depositions of PW1-Kunvar Bahadur Singh and P.W.2-Tej Bahadur Singh and even the cross- examination of the aforesaid two witnesses, this Court is of the opinion that both, PW1-Kunvar Bahadur Singh & PW2-Tej Bahadur Singh are trustworthy and reliable witnesses. Their presence at the time of incident when the deceased-Avadhesh Bahadur Singh was murdered, has been established and proved by the prosecution. The presence of PW1-Kunvar Bahadur Singh, P.W.2-Tej Bahadur Singh and even PW3-Dan Bahadur Singh, at the time of incident, is natural. PW1-Kunvar Bahadur Singh is the brother of the deceased, whereas P.W.2-Tej Bahadur Singh was accompanied with the P.W.1-Kunvar Bahadur Singh while returning home after listening Alaha which was going on in front of the house of Bhagwati Gadariya. Both these witnesses have categorically stated in their deposition that at the time of incident, they were 10-15 paces behind the deceased-Avadhesh Bahadur Singh while returning from listening Aalha, which was going on in front of the house of Bhagwati Gadariya. Similarly, PW3-Dan Bahadur Singh is the grand-father of the deceased and P.W.1-Kunvar Bahadur Singh. P.W.3-Dan Bahadur Singh, who is the injured witness, has specifically stated in his deposition that at about 09:30 p.m., he was sleeping at his door and on listening the noise of fire as well as alarm raised by Avadhesh Bahdur Singh (deceased) and Kunvar Bahadur Singh (P.W.1) coming out from western side of his house and northern side of the house of Chattrapal Singh near Napdan, he and Ramraj Kumari ran towards the house of Chattrapal and reached near the Napdan of Chattrpal, then, they saw that accused/appellant Hari Shanker armed with pistol, accused/appellant Bhagwat Singh and Shiv Baran armed with farsa, accused/appellant Shiv Prasad, Badri and Amar Bahadur armed with Ballam, accused/appellants Sardar Bahadur, Sharda Bux and Indra Bahadur, Indra Bahadur alias Dhunni Singh and Jitendra Bahadur, were inflicting the deceased Avadhesh Bahadur Singh and on seeing this, they tried to save deceased Avadhesh Bahadur Singh and thereafter, accused/appellants had also inflicted 5-6 lathis upon them. Both the witnesses P.W-3-Dan Bahadur Singh and P.W.1-Kunwar Bahadur Singh even P.W.2-Tej Bahadur Singh have fully and thoroughly cross-examined.

(89) It has been contended by the accused/appellants that there is the failure of the trial Court in not taking into consideration the major contradictions in the version of the F.I.R. and the statement of P.W.1-Kunvar Bahadur Singh with regard to presence of his father Chandra Bhushan Singh. According to him, in the F.I.R., there is no whisper of word as to when Chandra Bhushan Singh went to home from the place of Aalha, however, it has been stated that his brother Avadhesh Bahadur Singh (deceased) left the place of Aalha for home at 09:30 p.m. and he reached near the passage of the house of Chattrapal at about 09:30 p.m. His submission is that the distance between the place of Aalha i.e. the house of Bhagwati Gadariya and the house of Chattrapal is 200 steps, therefore, the presence of Avadhesh Bahadur Singh (deceased) at the place of Aalha and near the passage of the house of Chattapal Singh at the same time i.e. at 09:30 p.m. mentioned in the F.I.R. is quite impossible. According to him, P.W.1-Kunwar Bahadur Singh, in his deposition, has deposed at one place that his father (Chandra Bhushan Singh) and his brother (deceased Avadhesh Bahadur Singh) went to home together and on other place, he has stated that his father (Chandra Bhushan Singh) went to home half an hour ahead of the deceased Avadhesh Singh and him, which shows that there are major contradictions in statement of the P.W.1-Kunvar Bahadur Singh.

(90) So far as non-mentioning the time of leaving the place of Aalha by the informant/P.W.1 in the F.I.R. with regard to his father Chandra Bhushan Singh, it is a settled legal proposition that an FIR is not an encyclopaedia of the entire case. It may not and need not contain all the details. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from this. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular person in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused/appellants. Hence, this contention of the learned Senior Counsel appearing on behalf of the appellants has no force.

(91) So far as the contention of the learned Senior Counsel for the accused/appellants with regards to contradictions in the statement of the P.W.1-Kunvar Bahadur Singh that he deposed at one place that his father (Chandra Bhushan Singh) and his brother (deceased Avadhesh Bahadur Singh) went to home togetherwith and on other place, he has stated that his father (Chandra Bhushan Singh) went to home half an hour ahead of the deceased Avadhesh Singh and him, it is pertinent to mention that there may be some minor contradictions, however, as held by Apex Court in catena of decisions, minor contradictions which do not go to the root of the matter and/or such contradictions are not material contradictions, the evidence of such witnesses cannot be brushed aside and/or disbelieved.

(92) In the case of State of U.P Vs. Krishna Master : (2010) 12 SCC 324, it was observed by the Apex Court that in appreciating the evidence of a witness, Court should read the evidence as a whole. In the event, it appears to have a ring of truth, the discrepancy and the inconsistency of minor nature not touching core of the case would not ordinarily permit rejection of the evidence as a whole. Further, the cardinal rule of analysing the evidence of the witnesses in the light of the aforesaid principles is this the Court will have to determine first whether the evidence of eyewitnesses proves the prosecution case. The relevant portions of the above decision are quoted below:-

"15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

16. . . . .

17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case."

(Emphasis supplied)

(93) While taking note of the aforesaid case i.e. State of U.P. vs. Krishna Master and others (Supra), the Apex Court the case of Shamim Vs. State (GNCT of Delhi) : AIR 2018 SC 4529 has observed as under :-

"12. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it."

(94) In the instant case, the FIR was registered on the basis of a report submitted PW 1-Kunvar Bahadur Singh, who and P.W.2-Tej Bahadur Singh are the eye-witnesses. According to the prosecution case, as appears from the depositions of PW-1-Kunwar Bahadur Singh and P.W.2-Tej Bahadur Singh, on the date of the incident, they went to listen Aalha, which was going on in front of the house of Bhagwati Gadariya. Chandra Bhushan Singh, Avadhesh Bahadur Singh (deceased), accused/appellant Shiv Baran Singh and other villagers were also present there to listen Aalha. As per the deposition of P.W.1-Kunwar Bahadur Singh, he was 5-6 paces away from his father Chandra Bhushan Singh in the place of Aalha and during the course of Aalha, his father Chandra Bhushan Singh asked Biri from accused/ appellant Shiv Baran Singh, upon which accused/appellant Shiv Baran Singh told Chandra Bhushan Singh if you are fancier of biri, then, buy a biri and smoke it, to which his father Chandra Bhushan Singh told accused/ appellant Shiv Baran Singh that you are misbehaving, upon which accused/appellant abused his father Chandra Bhushan Singh and, then, his brother Avadhesh Bahadur Singh (deceased) asked accused/appellant Shiv Baran Singh as to why you have abused his father. Thereafter, accused/appellant Shiv Baran Singh left the place of Aalha while using filthy language and subsequent thereto, his father Chandra Bhushan Singh and his brother Avadhesh Bahadur Singh (deceased) went to home. After the aforesaid deposition, P.W.1-Kunwar Bahadur Singh has subsequently deposed that his father Chandra Bhushan Singh had gone home half an hour before them (P.W.1-Kunwar Bahadur Singh, Avadhesh Bahadur Singh (deceased), Jai Singh, Tej Bahadur Singh (P.W.2), Balwant Singh, Peshkar Singh). P.W.2-Tej Bahadur Singh, in his examination-in-chief, has categorically deposed that Aalha took place in front of the house of Bhagwati Gadriya and at that time, he, Kunwar Bahadur Singh (P.W.1), Avadhesh Bahadur Singh (deceased), Chandra Bhushan Singh (father of the deceased and P.W.1), accused/appellant Shiv Baran Singh and other villagers were present. In the night about 08:30 p.m., altercation took place between Avadhesh Bahadur Singh (deceased), his father Chandra Bhusan Singh and accused/appellant Shiv Baran Singh and accused/appellant Shiv Baran Singh has said some abusive language and after using abusive language, accused/appellant left from there. P.W.2-Tej Bahadur Singh has further deposed that at about 09:00 p.m., Chandra Bhushan Singh got up and left from there.

(95) From perusal of the depositions of P.W.1-Kunwar Bahadur Singh and P.W.2-Tej Bahadur Singh, one thing is clear that Chandra Bhushan Singh, who is the father of the deceased and P.W.1-Kunwar Bahadur Singh, has left from the place of Aalha prior to P.W.1-Kunwar Bahadur Singh and Avadhesh Bahadur Singh (deceased) as P.W.1-Kunwar Bahadur Singh has deposed at one place in his deposition that his father Chandra Bhushan Singh has left the place, where Aalha was going on, half an hour before them, whereas P.W.2-Tej Bahadur Singh has deposed in his deposition that altercation took place between Avadhesh Bahadur Singh (deceased), Chandra Bhushan Singh and accused/appellant Shiv Baran Singh at about 08:30 p.m. and Chandra Bhushan Singh left the place, where Aalha was going on, at about 09:00 p.m. Moreso, both P.W.1-Kunwar Bahadur Singh and P.W.2-Tej Bahadur Singh have deposed in their deposition that immediately after Chandra Bhushan Singh, Avadhesh Bahadur Singh (deceased) also went from the place, where Aalha was going on, towards home and when Avadhesh Bahadur Singh (deceased) reached near the Napdan of Chattrapal Singh, they as well as Balwant Singh, Peshkar Singh were 10-15 paces behind from Avadhesh Bahadur Singh (deceased) and also at that time, they and Jai Singh were having torches in their hand.

(96) In their deposition, both P.W.1-Avadhesh Bahadur Singh and P.W.2-Tej Bahadur Singh have further deposed that when Avadhesh Bahadur Singh (deceased) reached near Napdaan, they saw that accused/appellant Hari Shanker Singh armed with pistol, accused/appellants Bhagwat Singh, Shiv Baran Singh armed with Kanta and accused/appellant Shiv Prasad armed with Ballam and other accused/appellants armed with lathis surrounded Avadhesh Bahadur Singh (deceased) and, thereafter, accused/appellant Hari Shanker Singh fired upon Avadhesh Bahadur Singh, upon which Avadhesh Bahadur Singh fell down near Napdan and other accused/appellants, thereafter, assaulting Avadhesh Bahadur Singh with Kanta, Ballam and lathis.

(97) The report of Post-Mortem of the deceased Avadhesh Bahadur Singh shows that P.W.10-Dr. D.S. Shukla, who conducted the post-mortem of deceased Avadhesh Bahadur Singh, has found 26 ante-mortem injuries on his person and opined that deceased-Avadhesh Bahadur Singh died on account of shock and haemorrhage as a result of ante-mortem injuries. In his deposition, P.W.10 Dr. D.S. Shukla has stated that frontal bone of the head was fractured; Membrane of the brain was congested; ribs 3 to 6 on the right side were found fractured; and clotted blood was found on outerside of cerburm; these injuries were sufficient in the ordinary course to cause death. P.W.10 Dr. D.S. Shukla has also deposed that death could have been caused on 01.09.1981 at about 09:30 p.m.; incised wounds with contused injuries were caused by Kanta; and remaining injuries were caused by some blunt weapon like Lathi. This witness has also proved the post-mortem examination.

(98) The injured P.W.3-Dan Bahadur Singh and Ramraj Kumari were examined by P.W.6-Dr. Surendra Singh, who, on examination, found one injury of contusion upon injured Ramraj Kumari and five injuries upon P.W.3-Dan Bahadur Singh. In his deposition, P.W.6 has stated that all the injuries were caused by blunt weapon and these injuries could have been caused on 01.09.1981 at about 09:30 p.m.

(99) Here, it is to be kept in mind that the evidentiary value of an injured witness carries great weight. In Mano Dutt and another v. State of Uttar Pradesh : (2012) 4 SCC 79, it was held as under:

31. We may merely refer to Abdul Sayeed v. State of M.P. : (2010) 10 SCC 259 where this Court held as under:

28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar : (1973) 3 SCC 881, Malkhan Singh v. State of U.P. : (1975) 3 SCC 311, Machhi Singh v. State of Punjab : (1983) 3 SCC 470, Appabhai v. State of Gujarat , Bonkya v. State of Maharashtra : (1995) 6 SCC 447, Bhag Singh v. State of Punjab : (1997) 7 SCC 712, Mohar v. State of U.P. : (2002) 7 SCC 606, Dinesh Kumar v. State of Rajasthan : (2008) 8 SCC 270, Vishnu v. State of Rajasthan , Annareddy Sambasiva Reddy v. State of A.P. : (2009) 12 SCC 546 and Balraje v. State of Maharashtra : (2010) 6 SCC 673.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab : (2009) 9 SCC 719 where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:

'28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka : 1994 Supp (3) SCC 235 this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand : (2004) 7 SCC 629 a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana . Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.

To the similar effect is the judgment of this Court in Balraje (supra)"

(100) From the aforesaid dictum of the Apex Court as well as on perusal of injuries sustained by the injured P.W.3-Dan Bahadur Singh and Ramraj Kumari, it transpires that injuries sustained by the injured Ramraj Kumari and P.W.3-Dan Bahadur Singh and also the ante-mortem injuries sustained by deceased Avadhesh Bahadur Singh have been supported by the depositions adduced by the PW.1-Kunvar Bahadur Singh, P.W.2-Tej Bahadur Singh and P.W.3-Dan Bahadur Singh before the trial Court. These witnesses P.W.1, P.W.2 and P.W.3 are thoroughly cross-examined on each and every aspect pointed out by the defence. However, they have fully supported the case of the prosecution From the entire evidence on record, it is established and proved that the deceased Avadesh Bahadur Singh, PW1-Kunvar Bahadur Singh, PW2-Tej Bahadur Singh, Chandra Bhushan Singh and accused/appellant Shiv Baran Singh went to listen Aalha in front of the house of Bhagwati Gadariya on the date of the incident, wherein some altercation between Chandra Bhushan Singh and accused/appellant Shiv Baran Singh occurred on the asking of biri by Chandra Bhushan Singh from accused/appellant Shiv Baran Singh, thereafter, the incident had taken place, as narrated hereinabove. The place of incident has been established and proved by the prosecution.

(101) So far as the submission of the learned Counsel for the accused/appellants that there is no gun shot injury on the person of deceased Avadhesh Bahadur Singh though as per prosecution, accused/appellant Hari Shanker Singh has alleged to be fired with his pistol, it is required to be noted that it was never the case of the prosecution that there was a firearm injury on the person of the deceased. Even as per the evidence of the witnesses, when accused/appellant Hari Shanker Singh fired, the deceased fell down on the earth and thereafter, other accused/appellants have assaulted the deceased with Kanta, ballam and lathis. It was never the case of the witnesses that bullet hit the deceased.

(102) We have carefully gone through the depositions of PW1 and PW2, who can be said to be the star witnesses and they are the eyewitnesses to the incident. Their presence at the place of the incident are not doubted and they are found to be trustworthy and reliable. Their deposition is consistent with the allegations in the FIR. There is no reason to doubt his trustworthiness. Therefore, even the appellants can be and is rightly convicted relying upon the depositions of PW1 and PW2, who are eyewitnesses to the incident.

(103) In the instant case, it is apparent that testimony of injured witness P.W.3-Dan Bahadur Singh is clear and cogent and it finds ample support from medical evidence as well as statement of Investigating Officer. After considering entire evidence on record, it is apparent that conviction of accused-appellants are based on evidence.

(104) So far as the contention of the learned Counsel for the appellants that the alleged occurrence is stated to have taken place in the month of bhado and it was a dark night with no moonlight even and the entire incident are said to have seen by the eye-witnesses in the light of torch, which is improbable and on this count, the story of the prosecution cannot be believed also, it is relevant to mention here that from the perusal of the evidence on record, it is established that the occurrence took place at about 09:30 p.m. On the date of the incident, P.W.1-Kunwar Bahadur Singh and P.W.2-Tej Bahadur Singh were coming together after listening Aalha and the deceased was 10-15 paces ahead from them. Both the witnesses P.W.1-Kunwar Bahadur Singh and P.W.2-Tej Bahadur Singh have specifically stated in their depositions that they had seen the entire incident in the light of torches which were carried by them at the time of the incident as well as in the light of the torches of the accused/appellant.

(105) At this juncture, it would be apt to mention that in Nathuni Yadav Vs. State of Bihar : 1998 (9) SCC 238, the Apex Court has dealt with the issue of identification in the dark and observed as under :-

"Ever assuming that there was no moonlight then, we have to gauge the situation carefully. The proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glove of stars, and the fact that the murder was committed on a roofless terrace are germane factors to be born in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. Over and above those factors, we must bear in mind the further fact that assailants were no strangers to the inmates of the tragedy bound house, the eye witnesses being well acquainted with the physiognomy of each one of the killers. We are, therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there was possibility for making a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identity the victims whom they targeted without any mistake from among those who were sleeping on the terrace. If the light then available, though meagre, was enough for the assailants why should we think that same light was not enough for the injured who would certainly have pointedly focussed their eyes on the faces of the intruders standing in front of them. What is sauce for the goose is sauce for the gander."

(106) Recently, in the case of Pruthiviraj Jayantibhai Vanol Vs. Dinesh Dayabhai Vala and others (Criminal Appeal No. 177 of 2014), decided on 26.07.2021, the Apex Court has also relied upon Nathuni Yadav Vs. State of Bihar (supra) and has observed as under :-

"There is evidence about the availability of light near the place of occurrence. Even otherwise, that there may not have been any source of light is hardly considered relevant in view of the fact that the parties were known to each other from earlier. The criminal jurisprudence developed in this country recognizes that the eye sight capacity of those who live in rural areas is far better than compared to the town folks. Identification at night between known persons is acknowledged to be possible by voice, silhouette, shadow, and gait also. Therefore, we do not find much substance in the submission of the respondents that identification was not possible in the night to give them the benefit of doubt."

(107) P.W.1-Kunvar Bahadur Singh and P.W.2-Tej Bahadur Singh have consistently deposed in their statement that in addition to them, accused /appellant Hari Shanker Singh was also carrying a torch. In the F.I.R., it has been stated that the occurrence was seen by all of them with their respective torches and also in the light of the torches of the accused. In these circumstances, it cannot be said that there was no source of light at the place of occurrence. It is not in dispute that all the accused/appellants except accused/appellant Shiv Narain Yadav and eye-witnesses were living at very same village and in that situation, it is a common thing that a little light would have been sufficient to recognize the faces of known persons as the parties were known to each other from earlier and the eye-sight capacity of those who live in rural areas is far better than compared to the town folks. Moreso, the Investigating Officer has also inspected the torch and found it in a running condition and a entry of the same has also been recorded in the case diary. Therefore, the plea of the accused/appellants that there was no source of light, is not sustainable and the trial Court has rightly observed that from the evidence of record, the existence of light has clearly been established and would have been sufficient to identify the faces of the accused/appellants.

(108) At this juncture, it would also be borne in mind that the deceased Avadhesh Bahadur Singh has received as many as 26 ante-mortem injuries. This shows that he was inflicted injuries by a large number of persons and a smaller number of persons would not have been able to inflict so many injuries. Moreso, from the evidence on record, it transpires that at the time of death, deceased was aged about 35 years. That being so, he would have certainly been able to run away after receiving some injuries. These circumstances also corroborates the prosecution story.

(109) Now let us consider the case and/or defence on behalf of the accused/appellants. It was the case on behalf of the accused/appellants that the prosecution has failed to explain the injuries upon the persons of the accused/appellants, therefore, this ought to be taken as a circumstance to indicate the falsity of the prosecution case. It has been contended by the learned Counsel for the accused/appellant that injury no.1 caused by the accused/appellant Hari Shanker Singh by a fire arm.

(110) As per the statement of D.W.1-Dr. R.N.Sharma, he was not sure whether injury no.1 was caused by fire arm or not and, therefore, he recommended for radiological examination and further no pellet or foreign substance was palpable to him. He also stated that injury no.1 was skin deep. If for the sake of argument, it can be presumed that injury no.1 has been caused by a fire arm, then, definitely some foreign substance should have been palpable but D.W.1-Dr. R.N. Sharma has admitted in his statement that injury no.1, which is a lacerated wound, is caused by a blunt object. He further deposed that as Radiologist D.W.2-Dr. M.M. Pratap found a radio opaque shadow, therefore, he could not say as to whether this was caused by a blunt weapon or by a fire-arm. The cross-examination of this witness shows that he was not in a position to say as to whether this injury was in fact caused by a fire-arm, however, he admitted that injury no.1 could have been caused by a nail. D.W.2-Dr. M.M. Pratap, in his examination-in-chief, deposed that the radio opaque shadow could be of a pellet and that its confirmation could be made only by a ballistic expert. He admitted the fact that injury no.1 could be made by inserting a nail and then putting some foreign body in it. He, in his cross-examination, deposed that this radio opaque shadow had crossed the inner table of skull. The Trial Court, after considering the aforesaid, came to the conclusion that injury no.1 caused by accused/appellant Hari Shanker Singh was aggravated after medical examination and before the radiological examination in order to give it colour that it was caused by a fire-arm and more so from the evidence on record, it cannot be established that the said injury was caused at the time of occurrence.

(111) It transpires from the evidence on record that a suggestion was put to P.W.1-Kunwar Bahadur Singh in his cross-examination that fire arm was used from his side. This suggestion was denied by P.W.1. The name of the person who may have fired the gun was not suggested to any of the witnesses nor it was suggested that the fire hit accused/appellant Hari Shanker Singh. If any shot has been fired at the time of occurrence, then, a number of persons would have also been injured. In any case, accused/appellant Hari Shanker Singh would have receive more than one injury. In his statement, accused/appellant Hari Shanker Singh has stated that as soon as he came out of the house, he was shot. No blackening or carrying was found around this injury. In these backgrounds, the trial Court has rightly came to the conclusion that no such injury was received by accused/appellant Hari Shanker Singh at the time of occurrence and the trial Court has rightly observed that it is not improbable that in order to create a defense, this injury was manufactured and after aggregated in order to create a defence.

(112) It transpires from the injuries of the accused/appellants that injury no.1 of accused/appellant Bhagwat Singh is a lacerated wound 2 cm x 1 cm skin deep, which is a superficial one. D.W.1-Dr. R.N. Sharma has deposed in his statement that these injuries were about four days old. It appears that apprasions of the dimension of 1 cm x ½ cm would have been present even after the lapse of four days. Moreso, most of the injuries were on non-vital parts of the body as the injuries were on overhand and feet. The Trial Court has rightly observed that the injuries could have been very well self-suffered and self-manufactured or caused at the time of their arrest.

(113) So far as the defense taken by the accused/appellants that miscreants have attacked the villagers and the villagers, on thinking that deceased Avadhesh Bahadur Singh and others to be miscreants, were inflicted them in self defense and, on account of which, Avadhesh Bahadur Singh sustained injuries and died and also P.W.3-Dan Bahadur Singh sustained injuries, it is relevant to mention that the trial Court has recorded specific finding that accused/appellants had refused to give statement under Section 313 Cr.P.C. unless their counsel had come. It transpires from perusal of the evidence on record that it was not suggested to any of the witnesses or to the Investigating Officer in their cross-examination that miscreants had attacked the villagers and the villagers thought Avadhesh Bahadur Singh and Dan Bahadur Singh being the miscreants assaulted them in self defense and on account of which both of them sustained injuries. The injuries report of the accused/ appellants shows that except injury no.1 of the accused/appellant Hari Shanker Singh, which too was suspected, all the injuries are simple in nature and non-vital part of the body. If plea of defense that accused/appellants have been attacked by the miscreants or by the complainants' party, is taken to be true, then, certainly some of the accused/ appellants would have received grievous injuries but D.W.1 and D.W.2, who examined the accused/appellants, have not found any grievous injuries on the persons of accused/appellants. In these backgrounds, the trial Court has rightly observed that accused/appellants were grouping in the dark as they had no defence and only as an afterthought, they took the plea of the attack by the miscreants including the complainant's party for the first time in their statement under Section 313 Cr.P.C. and as such, defence version is only an afterthought and has no legs to stand.

(114) The judgments, which have been relied by the learned Counsel for the accused/appellants are not applicable in the facts and circumstances of the case.

(115) For the reasons stated hereinabove, this Court see no reason to interfere with the impugned judgment and order dated 15.07.1982/16.07.1982 passed by the trial Court convicting and sentencing the accused/appellants for the offences as mentioned in paragraph Nos. 6 and 7 hereinabove. This Court are in complete agreement with the view taken by the trial Court.

(116) The above-captioned appeals are, accordingly, dismissed.

(117) Accused/appellant no.2-Badri Singh, accused/appellant no.3-Amar Bahadur Singh, accused/appellant no.4-Shiv Prasad Singh, accused appellant no.5-Jitendra Bahadur Singh, accused/appellant no.7-Shiv Narain Yadav in Criminal Appeal No. 546 of 1982, accused/appellant no.2-Sharda Bux Singh in Criminal Appeal No. 547 of 1982 and accused/appellant-Hari Shanker Singh in Criminal Appeal No. 548 of 1982 are on bail. Their bail bonds are cancelled and sureties discharged. They are directed to surrender forthwith, failing which they shall be taken into custody to serve out remaining period of sentence in terms of the impugned judgment and order dated 15.7.1982/16.07.1982 passed by the trial Court.

(118) The Senior Registrar of this Court is directed to transmit the certified copy of this judgment and order of this Court along with the record to the Sessions Judge, Raebareli for necessary information and compliance. It is further directed that the record of the case transmitted by this Court shall be kept in safe custody by the trial Court.

(Rajeev Singh, J.)    (Ramesh Sinha, J.)
 
Order Date :-27.09.2021 
 
Ajit/-