Amit @ Amit Yadav vs State Of U.P.
2022 Latest Caselaw 10698 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                                    AFR
 
			                       Judgment reserved on 15.03.2022
 
                    		                       Judgment delivered on 22.08.2022
 

 
Case :- CRIMINAL APPEAL No. - 3774 of 2011
 
Appellant :- Amit @ Amit Yadav
 
Respondent :- State of U.P.
 

 
Connected with
 

 
Case :- CRIMINAL APPEAL No. - 4433 of 2011
 
Appellant :- Pawan
 
Respondent :- State of U.P.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Chandra Kumar Rai,J.

(Per: Hon'ble Mahesh Chandra Tripathi, J.)

1. Both Criminal Appeals are directed against judgment and order dated 03.06.2011 passed by Additional District and Sessions Judge, Court No.6, Moradabad in Sessions Trial No.1171/2007 (Pawan & two others vs. State) connected with Sessions Trial No.1172/2007 (Pawan Yadav & another) whereby, Pawan (appellant in connected Criminal Appeal No.4433 of 2011) and Amit @ Amit Yadav (appellant in leading Criminal Appeal No.3774 of 2011) have been convicted and sentenced under Section 302 read with Section 34 IPC for life imprisonment with fine of Rs.20,000/- each and in default of payment of fine to further undergo imprisonment for a period of three years. They have also been convicted and sentenced under Section 504 IPC to undergo R.I. for six months with fine of Rs.1000/- each and under Section 506 IPC to undergo R.I. for two years with fine of Rs.4000/- each. They have further been convicted and sentenced under Section 25 of Arms Act to undergo three years R.I. with fine of Rs.6000/- each. All the sentences have been ordered to run concurrently.

2. We have heard Sri Rajiv Lochan Shukla, Sri Manish Tandon and Sri Thakur Prasad Dubey, learned counsel for the appellants; Sri A.N. Mulla/Sri G.P. Singh, learned AGA for the State and have perused the record.

3. In an abridged form, prosecution allegations against appellants, as were contained in the written report dated 09.8.2007 (Ext. Ka-1), were that the informant Rajaram submitted a written report on 09.8.2007 alleging therein that on 08.8.2007 at about 11.00 p.m, when he was about to take dinner, his elder son Pawan, real nephew Amit and one more boy armed with country made pistols, entered his house and Pawan abused and threatened him stating that as the complainant had given the shop to Amod (younger son), today he will not let him live. They got the complainant and his wife, namely Hansho Devi, sat down at the Varandah. At that point of time, his son Amod returned to the home after shutting down the shop and all three persons caught him. Pawan fired the first shot while Amit fired the second shot at Amod with intention to kill him due to which he sustained injuries. He had taken his injured son to the hospital from where he was referred to 'Sai Hospital' and while they were leaving for 'Sai Hospital', his son (Amod) succumbed to injuries. The complainant went to the Police Station Kotwali, Moradabad on 09.8.2007 and submitted the written report, whereupon Case Crime No.1333/2007 under Section 302/504/506 IPC and Case Crime No.1341/2007 under Section 25 of Arms Act, Police Station Kotwali, Moradabad, were registered against the accused persons.

4. The body of the deceased was sent for post-mortem examination, which was conducted by R.P.S. Suman (PW-3) on 08.8.2007, wherein he noticed following injuries:-

"(1) Firearm wound of entry on front of right side of chest 3cm x 2.5cm x chest cavity deep present, 6 cm below the right nipple and 8 cm lateral to mid line, margins of the wound inverted and blackening present around the wound margins.

(2) Firearm wound of entry on back left side of chest 2 cm x 2 cm x abdominal cavity deep present 5 cm below the inferior angle of left scalpha and 15 cm lateral to mid line margins of the wound inverted and blackening present around the wound margins.

(3) Firearm wound of exit on front of abdomen 3 cm below the umbilicus just lateral to mid line on right side. It is 5cm x 4 cm in size and margins of the wound everted. Intestines coming out of the wound."

5. The investigation of the case was conducted and three separate charge sheets were submitted on 31.8.2007 (Ext.Ka-23 & 24) and 23.9.2007 (Ext. Ka-21). Ex. Ka-23 and 24 are the charge sheets submitted by Sunil Kumar Pachauri, SHO, Police Station Kotwali, Moradabad (PW-8) against Pawan Yadav and Amod Yadav under Section 25 of Arms Act, whereas, Ex. Ka-21 is the charge sheet submitted against Pawan, Amod and Subhash under Sections 302/504/506 IPC. After taking cognizance on the charge sheets, case was committed to the Court of Session. Two separate trials were instituted, namely, S.T. No.1172 of 2007, which was against Amit Yadav and Pawan Yadav for offences punishable under Section 25 of Arms Act and S.T. No.1171 of 2007, which was against Pawan, Amit and Subhash for offences punishable under Sections 302/504/506 IPC. In the Memorandum of Charges, there were allegations that on 08.8.2007 at about 11 p.m. Pawan, Amit and Subhash intentionally insulted the complainant by using abusive language and thereby they gave provocation to the complainant and committed an offence punishable under Section 504 IPC; secondly, on the aforesaid date, time and place, they threatened the complainant and in consequence of the threat, they committed the murder of the Amod and thereby, they committed the offence punishable under Section 506 IPC and thirdly, they intentionally committed the murder of Amod and thereby, they committed an offence punishable under Section 302 IPC. Amit Yadav and Pawan Yadav were further charged that on 17.8.2007 at about 7 a.m. they were found in possession of country made pistols (12 bore/315 bore) and live cartridges (12 bore/315 bore) for which they had no valid licence. The accused persons pleaded not guilty and claimed for a trial.

6. During the course of trial, 11 prosecution witnesses were examined, namely, Raja Ram (PW-1/complainant); Nazar Hasan (PW2-Constable, who made GD entry of the written report and prepared Chik FIR); R.P.S. Suman (PW-3-the Doctor, who carried the postmortem); Dr. P.S. Sharma (PW4- Senior Medical Officer, who conducted the medical examination of the deceased); Ram Autar (PW5-the real maternal uncle of the deceased); Hari Om (PW6-good friend of the deceased); Suresh Chandra (PW-7, Constable, who carried the body of the deceased to the mortuary for autopsy); Sunil Kumar Pachauri (PW-8, the investigating officer, who conducted the investigation of the case and submitted charge sheet); Umesh Kumar Singh (PW9- Sub Inspector, who recovered the country made pistols from the accused); Mahesh Chandra (PW10-Inspector, who also conducted the investigation of the case and submitted charge sheet) and M.S. Chauhan (PW-11-Sub Inspector, who conducted the investigation of the case under Section 25 of Arms Act and submitted charge sheet). After the prosecution evidence was led, the statements of the accused persons were recorded under Section 313 Cr.P.C. The trial court convicted and sentenced the appellants, as noticed above, against which these appeals have been filed.

7. Before we proceed to notice the rival submissions, in order to have a clear understanding of the context in which those submissions have been made, it would be apposite to notice the testimony of the prosecution witnesses. The testimony of the prosecution witnesses, shorn of unnecessary details, is as follows:-

8. Raja Ram (PW-1/complainant) stated in his testimony that the deceased Amod was his son. The accused Pawan is his elder son and another accused Amit is his real nephew. The third accused Subhash is friend of the accused Pawan and Amit. The incident is dated 08.8.2007 at 11 o'clock in the night. At the time of closing of his grocery shop, which is under the house of his residence, around 10-1/2 and quarter to eleven, he was on the upper floor of his house (residence). At that time his wife Hanso Devi was also at home. After five minutes all the three accused persons (present in the Court) came to his residence having Tamanchas (country made pistols) in their hands by way of staircase. In a threatening voice, his son Pawan, who was present in Court, calling him by abusive language (Harami) to sit on one side and if he says a little bit, then his wife would be killed. He was frightened by their threat and being afraid, they sat on one side. Then, after 2-3 minutes Amod (deceased) after closing his shop, came to his house on his way to the staircase. Subhash grabbed his son Amod and Pawan and Amit together shot at his son (Amod) one bullet each. One bullet hit his son Amod's stomach and the second bullet hit his chest. His son Amod fell on the floor and he was bleeding. The PW-1 did not try to nab all the three accused as they had fled threatening at that time. After this incident his wife remained sitting on the spot but he ran outside the house; came on the road and raised noise. They were running forward and he was running after them, then all the accused threatened the local people, if they testify against them, they would also have to face same consequences as Amod (deceased) suffered. No person came forward to help him. Meanwhile, the police patrolling Jeep had reached near his house. He had informed the patrolling policemen about the incident. There was also a police Inspector in the patrolling Gypsy. Then the police men had picked his son, who was in critical condition, in Gypsy vehicle and his son was taken to the District Hospital. The PW-1 also accompanied them to the District Hospital in the same Gypsy. By that time, his relatives had not come and the doctor told in the hospital that the condition of his son Amod was worrying. Therefore, he took his son Amod to Sai Hospital, Moradabad for treatment in the same Gypsy. After reaching at Sai Hospital, the doctors declared him dead on arrival. After this he wrote the written Tahrir of the incident (Paper No.5/2) in his own handwriting at the Police Station Kotwali, Moradabad (paper torn). On the basis of Tahrir, the case was registered and the carbon copy of the same was received by him. Thereafter the police reached the place where the body of his son was kept. The police had made a Panchayat Nama after seeing the dead body of his son and had sealed the dead body. After sealing the dead body the same was sent to the mortuary for postmortem. The police had narrated the Panchayat Nama to him and got his signatures on the Panchayat Nama. The witness corroborated his signatures on the Panchayat Nama available on the letter. The Inspector had taken his statements. He lodged the FIR wherein he named two persons and another person was unknown. He had written in the FIR that he knows by looks (third person) and not by name. The name of the accused (third person) was told to him by his wife when he was apprehended. On the next date he had told the Inspector that the name of third accused was told by his wife as Subhash, upon which the police arrested the third accused Subhash.

9. The witness stated that the reason for the murder was that his son Pawan lived separately after marriage and he had given him a part of the second floor of that property for the purpose of living, wherein his son Amod (deceased) used to run a grocery shop. This house was a three-storied building and his son Amod (deceased) used to run a grocery shop on the ground floor. He had given the first and second floor of the house to his accused son Pawan for living. Apart from this property, he has another house at Qazi Sarai in the same locality. In ground floor, he used to run a grocery shop at the time of the incident. This house is a four-storied building. In the rest of the floors of this house, he himself used to live alongwith his wife Hanso Devi and two unmarried sons Amod (deceased) and Sagar. The house, in which Amod (deceased) used to run a grocery shop on the ground floor and his accused son Pawan lived in the upper two floors, is also located in Mohalla Qazi Sarai. He had given a shop on rent to the accused son Pawan after his marriage and he had started the work of retail in that shop so that he could take care of his children. His accused son Pawan had closed this rental shop about 5-6 months before the incident. The accused son Pawan used to ask him to give the Amod's shop to him, otherwise there would be serious consequences. He was not in a position to give Amod's grocery shop because his house was also running from the earning of this shop. He had married his daughter in which huge money was spent and his younger son Sagar was living at Mussorie, which also requires expenses. He told his accused son Pawan for not insisting him to take Amod's shop because he had given him a separate grocery shop. Both the houses of Qazi Sarai are in his name. The accused Amit is the son of his elder brother Murari Lal and he is his real nephew. His accused son Pawan had shot at his younger son Amod because he could not find the grocery shop of Amod. The reason for the accused Amit to shoot his son Amod was that Amod and Amit used to work in the business of cassette together in the year 2007. Both have suffered losses in the business of cassette. Amit owed about Rs.40,000/- from his son Amod (deceased) which Amod could not pay to Amit due to which Amit used to quarrel with his son Amod every day. Due to this enmity, accused Amit alongwith Pawan shot his son Amod. The third accused Subhash was the friend of his accused son Pawan and accused Amit and therefore, he accompanied them to the spot. The witness stated that he had married his accused son Pawan on 19.1.1999. After the marriage, Pawan and his wife Mrs. Rajkumari stayed with him for about two months. At that time his first wife Prabha Devi was dead and till that time, he was not married to his second wife Hanso Devi. All his children are born from the first wife Mrs. Prabha Devi. After two months' of his marriage, his son's wife refused to make Chapati (Roti) for him and started saying that he will live separately with his wife. Thereafter, his son Pawan started living separately and the PW-1 was forced to do his second marriage with Hanso Devi so that arrangements can be made for his cooking. His son Amod had died on the way before reaching Sai Hospital.

10. The witness stated in cross-examination that he has three sons and one daughter, his elder son's name is Pawan and younger son's name is Amod. His daughter's name is Chanchal Rani, who is elder than Amod and the name of his third son is Sagar. Naveen is Hanso Devi's son but not his biological son. Naveen is only 8-9 year's old and stays with him. The witness was married to Hanso Devi about 7 years' ago and he does not remember the day, date, month and year. His accused son Pawan got married in the year 1999. Naveen was one year old when he married Hanso Devi and he borne all the expenses of Naveen. His son Sagar has completed his education and he studied at Mussoorie since Class-I and thereafter, studied at Dehradun. He opens his shop at 06.00 in the morning and closes it at 9 to 10 in the night. Amod also used to open his shop at 06.00 in the morning and used to close it at 9 to 10 in the night. Amod's shop is at a distance of 50 yards from his shop. His son Amod (deceased) had a general provision store. The complainant and his son Amod stayed together and took meals together. The door of his shop is separate from the staircase of his residential house. His son Pawan and nephew Amit used to visit his house sometimes. The relations of his son Pawan and Amod (deceased) were good and there was no dispute between them. He had not partitioned his property in writing. Sachin and Dinesh were his tenants but they were not present at the time of incident. The complainant and his wife were present at the time of incident.

11. The PW-1 admitted in his statement that his son Pawan had no dispute with him prior to this incident nor he demanded any money before this incident. He was sitting after taking meal, when Amit, Subhash and Pawan entered his house and Amod was not present at that time. Pawan abused him and all three accused were armed with country made pistols. He did not raise the alarm due to fear of country made pistols. They did not fire at him and at that very moment, his son Amod (deceased) arrived. Subash wrapped his arms on Amod as soon as he arrived. Pawan and Amit shot him and Subhash held him. The witness was declared hostile for accused Subhash. The occurrence took place on 8.8.2007 at 11 o'clock night and at that time, the electricity was run by inverter in his house and in the same light, he recognised all the three accused persons Pawan, Amit and Subhash properly.

12. PW-2 (Nazar Hasan) stated that on 09.08.2007 he was posted as Clerk/Constable at Police Station Kotwali, Moradabad. The complainant moved the written complaint registered as Case Crime No.1333/2007 under Sections 302/504/506 IPC (Ext. ka-02). He had made entry of this case in G.D. No.02 on the same day. During the cross-examination, the witness stated that the time of the incident mentioned at 22:45 hours in the Chik FIR (Ext. Ka-02) was overwritten as 11:00 o-clock. by him. He had brought the record of the police station, wherein the time at 22:45 was overwritten as 11:00 on the same day. There are cuttings at many places in Exhibit Ka-01, which was presented before him and the entry of cuttings was made in the G.D. He stated that on the same day, he prepared the Chik FIR No.200/07 concerning C.C.No.1340 & 1341/07 under Section 25 Arms Act (State versus Pawan & Another). He denied the suggestion that the G.D. was not written in the same manner, as it is available, rather number was mentioned later on after writing the G.D. at any other time.

13. PW-3 (R.P.S. Suman) has stated in his testimony that on 09.8.2007 he was deputed at District Hospital, Moradabad and on that day, he was posted at Post Mortem House. Constable Prem Kumar and Suresh Chandra brought the dead body of the deceased (Amod) in sealed condition at about 02.30 p.m. The dead body was perused and the seal of dead body was intact. The seal of dead body was opened and post mortem examination was conducted by him. The deceased was aged about 25 years and the death was presumed to have occurred 12 hours' before. He had examined the dead body externally and stated that the deceased was of average height and built. The following injuries were found on the person of deceased:-

"1. Fire arm wound of entry on front of right side of chest 3 cm X 2.5 cm X chest cavity deep present, 6 cm below the right nipple and 8 cm lateral to mid line, margins of the wound inverted and blackening present around the wound margins.

2. Fire arm wound of entry on back of left side of chest 2 cm X 2 cm X abdominal cavity deep present 5 cm below the inferior angle of left scaphla and 15 cm lateral to mid line margins of the wound inverted and blackening present around the wound margins.

3. Fire arm wound of exit on front of abdomen 3 cm below the umblicus just lateral to mid line on right side. It is 5 cm X 4 cm in size and margins of the wound everted. Intestines coming out of the wound.

Internal Examination of dead body

1. Pleura was lacerated. One litre blood was present in pleura cavity. Right and left lungs were lacerated. A cylinderical Metilical bullet was received from the right lung. Peritoneum was lacerated. Around 1-1/2 litre blood was present in Abdominal cavity. Around 150 gm partially digested food was present in stomach. Small intestine was lacerated. A plastic cap and four pellets were recovered from intestine. Large intestine was also lacerated. Left kidney was lacerated."

14. PW-3 stated that in his opinion, deceased died due to fire arm injuries resulting into hemorrhage and trauma. The post mortem report was prepared by him during postmortem. In his cross-examination, he stated that the deceased might have taken food 4-5 hours before the death. The pellets/bullets of firearm were taken out of the body of deceased. The deceased had not undergone any operation before the postmortem. There was injury on the front of the person of deceased and another was on left side at the back. On further cross-examination, he sated that he cannot tell as to how many weapons caused injuries to the deceased. He denied the suggestion that the injury on the person of deceased was not caused by the firearm.

15. PW-4 (Dr. P.S. Sharma) stated in his testimony that on 8.8.2007 he was posted as Emergency Medical Officer at District Hospital, Moradabad. On that day at 11:40 p.m. he had examined the injuries of Amod, aged around 26 years. The identification mark has been mentioned and the following injuries were found on the person of injured:-

"Injury number 1- 3 cm below the right nipple and inwards covering 12 cm X 8 cm area on the right side of chest in front 1 cm X 2-1/2 cm length and 1/2 cm to 2 cm width. Four incised-lacerated entry wounds of firearm were found.

Injury number 2- 12 cm below xiphisternal nostch somewhat outwards navel incised-lacerated exit wound 4 cm X 4 cm on the front of stomach caused by firearm from where intestines and Mesentry were coming out stomach deep bleeding."

16. The PW-4 stated that the health condition of injured was poor and he was in trauma, therefore, detailed examination was postponed. The aforesaid injuries were fresh and were possible to have been caused by the firearm. The injured was admitted in emergency ward and was referred to surgeon and the X-ray was advised. He stated that the thumb impression of injured was obtained on report during the examination. On seeing medical report, the PW-4 stated that it was the same medical report (Ex Ka-5), which was prepared by him during examination and he certified the same. In his cross-examination, he stated that the injured was brought at P.S. Kotwali by Constable Shyam Kumar. The injuries sustained by the injured were fatal for his life. All the three injuries of the injured were caused by the firearms. He denied the suggestion that all the injuries of the injured were not caused by the firearms and the injuries sustained by the injured were not fatal for his life. Injured's injuries may have happened ½ hour before he did the test. He further denied the suggestion that the examination of the injuries of the injured was not done properly at the time of medical examination and the injury no.3 was mentioned later on just to strengthen the case.

17. PW-5 (Ram Autar Singh) stated on oath that he knew the deceased Amod. He was son of his brother-in-law (Behnoi) Rajaram, and was his real nephew (Bhanja). On 09.08.2007, he came to Moradabad from his house at Kashipur on hearing the information of Amod's murder but his dead body was not sealed in his presence, which was already sealed prior to his arrival. The Sub-Inspector had called him to the police station and got his signature there on the Panchayat Nama. At this stage, the witness was declared hostile on an application moved by the ADGC.

18. During cross-examination by ADGC (Criminal), the witness stated that he does not know as to how Amod was killed and he did not hear who did the murder. On the next day i.e. 09.08.2007, he reached the house of the deceased Amod after getting the information of his death. He further stated that his sister had already died prior to this incident and hence, there arises no question of any interaction with anybody. He had met with his brother-in-law (Behnoi) Rajaram but he did not held any talk as to who had committed the murder of the deceased. After the death of his sister, his brother-in-law Rajaram had solemnized second marriage due to which he did not speak with his brother-in-law. When he reached there, the police was sitting inside the house but he did not see the dead body of Amod in open state. He admitted that both the deceased Amod and accused Pawan are sons of his real sister and brother-in-law Rajaram. He denied that he was giving false testimony before the court in order to save the accused Pawan. The accused Amit is also his nephew.

19. PW-6 (Hariom) has stated in his statement that he knew Amod and he was a good friend of mine. On 09.08.2007 morning, he went to Moradabad (Amod's house) from Kashipur with Ramavtar. Amod's body was not sealed in front of mine nor was the Panchayatnama filled in his presence. At this stage on the request of A.D.G.C. (Criminal), the witness was declared hostile and given an opportunity of cross-examination. During cross-examination, he stated that Ramavtar is the maternal uncle of Amod (deceased) and he also lives in his locality at Kashipur. Ramavtar is his real cousin. Due to this relationship, Amod (deceased), Pawan (accused) and Amit (accused) also seem to be his nephews. The witness was shown the panchayatnama available on the letter, the witness said that no such panchayatnama has been prepared by the police in front of us. The signatures on the panchayatnama are of mine. It is wrong to say that he has given false testimony against accused Amit and Pawan because they seem to be his nephews in the relationship. It is wrong to say that today he was deliberately giving false statement to save the accused.

20. PW-7 (Suresh Chandra) has stated on oath that on 09.08.2007, he was deputed as Constable in the Police Station Kotwali; on that day panchayatnama of the deceased Amod (son of Rajaram) was prepared by Daroga Ji Mukesh Kumar and the dead body of the deceased (son of Rajaram) was sealed and other forms were prepared. On that day, he had handed over the dead body of Amod for postmortem. Dr. R.P.S. Suman did the post mortem and after the postmortem the body of the deceased was handed over to his father Rajaram. The panchayatnama was prepared on 09.08.2007. In cross examination on behalf of the accused Amit, he stated that around 30-40 people were present while filling the panchayatnama. The dead body of Amod was handed over to him by the Inspector after filling the panchayatnama and after sealing the dead body of the deceased.

21. PW-8 (Inspector Sunil Kumar Pachauri) stated that on 08.8.2007, he was posted as Inspector in Kotwali, Moradabad. After getting the papers related to the case from the Police Station, he got engrossed in the investigation and took the statement of informant. He went to the spot with the informant, Majroore (injured) was admitted to the hospital prior to him. The inspection could not be done at the site of the incident as it was night. Thereafter PW-8 came to the hospital. The deadbody was kept in mortuary. His colleague SI Mukesh Kumar was directed to fill up the panchayatnama. S.I. U.K.Singh and a Constable were present in the District Hospital, who gave him medical report, which was recorded in the GD. All the proceedings of panchayatnama were done by SI Mukesh Kumar, who has been posted with him. He recognized his writing and signature. He certified Ext.A-8, A-9, A-10, A-11, A-12 and A-13. The PW-8 stated that he came to the site of the incident on 09.8.2007 with the informant and inspected the site. He had prepared the site plan of the spot and taken plane and blood stain earth/soil from the spot and one cartridge (12 bore), one cartridge (315 bore) & also one flattened cartridge into his custody. It's Fard was written on the spot. The inverter and battery were seized from the spot and it's Fard was made. The witness read the same and signed the Fard (Ext.14, 15, 16, 17 and 18 (Fard of inverter and battery) after receiving postmortem report of deceased at the police-station the copy was attached to the GD. On 10.8.2007 again the statement of the informant was recorded, wherein he apprised that the third person, among those who killed his son, is a man named 'Subhash'. His wife apprised his name and consequently, Hanso Devi's statement was taken. The statement of informant's tenant Mahesh was taken and on 12.8.2007 the statements of witnesses of panchayatnama were also taken. On 17.8.2007 at 05.25 AM accused Pawan and Amit were arrested from Kashipur Tiraha on the informer's tip. They were brought to the police station and questioned. On being told by the accused, the recoveries of country made pistols/tamanchas (315 bore) and (12 bore) used in the crime were made from the field of Parkar Inter College. One country made pistol of 315 bore and one live cartridge (315 bore) were recovered from Pawan and one 12 bore country made pistol and one live cartridge (12 bore) were recovered from Amit. The same were sealed on the spot and the sample stamp was made on the recovered items. The Fard was prepared by SI J.K. Singh, which was also singed by him (Ext. A-19). The statement of SI Umesh Singh was taken on 26.8.2007 and the statement of the Inspector was written on 28.8.2007. On 08.9.2007 at 05.10 AM the third accused Subhash was arrested from his residence. On 09.9.2007, the PW-8 was transferred from Kotwali Police Station. The seal of the recovered items was opened in the Court in which one Tamancha (12 bore) and one Tamancha (315 bore) came out which the accused said that it was the same items.

22. During cross-examination, the PW-8 stated that he went to the spot at night but cannot remember the time by now. When he reached the spot for the first time, he did not take any empty cartridge on account of darkness at the site. He had not called any public witness while recording the statements of the accused persons on 17-8-2007. The complainant showed him two godowns and one staircase on the ground floor under his house. No shop was found on the ground floor of the house. On seeing the statement of the complainant under Section 161 Cr.P.C. the witness stated that the complainant had not told him that he was residing on the ground floor. In the site-plan, he had shown the second house of the complainant. He had recorded the statements of the informant's tenants Sachin and Dinesh. At the time of inspecting the place of the incident, he did not see the blood on the complainant's staircase from the first floor and on the road. Exhibit Ka-16 does not bear Naresh's signature or thumb impression. The memo (Exhibit Ka-15) does not bear the signature or thumb impression of the witness Naresh. Even Exhibits (Ka-17 and Ka-18) do not bear the signatures and thumb impressions of the witness Naresh. When he reached the hospital, he did not take the statement of Hanso Devi as she was not in a condition to give the statement. The place of the incident was located in the middle of the city near the market. Amit and Pawan fired one gunshot each and one hit in the chest of the deceased and another hit in his stomach. The complainant did not tell him that the accused Subhash was a friend of Pawan and Amit and therefore, he went to the scene of the incident.

23. PW-9 (Umesh Kumar Singh) stated on oath that the S.H.O Suneel Kumar Pachauri, S.S.I. J.K. Singh, Constables Jitendra Singh, Akash Kumar, Satyapal, Constable/Driver Rafiq and the witness took the accused Pawan and Amit and when they reached inside the main gate of the Parkar Inter College, both the accused persons got down from the Jeep and went ahead and then took out a polythene from the bushes located at a distance of four steps from the wall and 10 steps away towards north from the southern corner of Ramesh Chandra Sahu Girls Inter College. Out of this polythene, the accused Pawan took out a country-made pistol 315 bore and handed it over at around 7:00 am and stated that he had inflicted the injury to Amod Yadav by firing gunshot with the same country-made pistol. From the same polythene, the accused Amit gave a country-made pistol 12 bore, and stated that with the same pistol, he had inflicted the injury to Amod by firing gunshot at the time of the incident. The cartridges of both the country made pistols were extracted from the barrels and sealed separately. During the cross examination the witness stated that the departure GD was prepared by the Inspector and he had not put his signature on the departure GD. The witness denied that he had not gone to the Parker Inter College. The recovery memo was prepared in duplicate and copy of the recovery memo was given to the accused Pawan.

24. PW-10 (Inspector Mahesh Chandra) stated that on 12.09.2007 he had taken the investigation on the transfer of the SHO Sri Pachauri. The statements of the S.I. Mukesh Kumar, S.S.I. J.K Singh, Constables Jitendra Singh, Akash Kumar, and Satyapal Singh were recorded on 14.09.2007. The statements of the witnesses to the inquest namely Ram Autar and Hariom were recorded on 21.09.2007. On 23.09.2007 the statements of Constable Prem Kumar and Suresh Chandra were recorded and on the offense being established, the charge-sheet under Sections 302, 504, 506 IPC was filed against the three accused. During the cross examination, the witness stated that he did not mention the time of the investigation. Neither, he had verified the statements, which were recorded by the earlier investigator nor the place of occurrence. He had not made any attempt to record the statements of the people living in the neighborhood of the place of occurrence. He had not found in his investigation that the deceased had died in 'Sai hospital'. As per his investigation, both the weapons were recovered from the same spot and he had not found in the investigation that both the weapons involved in the murder were kept at some distance from each other.

25. PW-11 (M.S. Chauhan) stated in his statement that the preliminary investigation in the Case Crime No.1340 of 2007 under Section 25 of the Arms Act lodged against Pawan Yadav and the Case Crime No.134 of 2007 lodged against Amit Yadav were conducted by Sub Inspector Mukesh. He had taken up the investigation on 31.08.2007 and thereafter, he had recorded the statement of the complainant, Sunil Kumar Pachauri and the statement of the witness. The site map of the place of occurrence (Exh. Ka-22) was prepared by the witness in his handwriting and after completion of the investigation, he had filed charge-sheets (Exh. Ka-23 and Ka-24) against the accused Pawan Yadav and Amit Yadav before the court concerned. The sanctions for prosecution were obtained by him and these papers are marked as Exhibit Ka-25 and Exhibit Ka-26. During the cross-examination, he had mentioned in the case-diary about the GD for the police party proceeding for the arrest of the accused. He did not take permission of the Principal of the college for preparing the site-map. In the map, the recovery had been shown near Ramesh Sahu Inter College at the behest of the complainant.

26. After appreciating the evidence available on record, the trial court found the occurrence duly proved by ocular account as well as material collected during investigation. Consequently, the trial Court has convicted and sentenced the appellants as aforementioned on the ground that the convict-appellants Pawan and Amit had murdered their real brother and real cousin brother Amod with the illegal weapons in their hands and the accused persons had committed this offence at the house of their father in which the only witness is the father of accused-appellant Pawan and the offence of the accused persons is of grievous nature.

27. Learned counsel for the appellants submitted that there was a delay in lodging the FIR. The incident took place on 08.8.2007 at about 11 PM and the FIR was lodged on 09.08.2007 at about 01.00 a.m. (night) alleging that the accused persons injured his son Amod with fire shots in which he sustained injuries and died in the hospital. In the post mortem report, the cause of death was shown due to shock and hemorrhage, as a result of ante-mortem firearm injuries. The appellants have been assigned the role of firing of one shot each on the deceased. The co-accused Subhash was assigned the role of holding the deceased and he has been acquitted by the trial court. One country made pistol of 315 bore and one live cartridge were allegedly shown to be recovered from Pawan and one country made pistol of 12 bore and one live cartridge were allegedly recovered from Amit @ Amit Yadav. It was submitted that two eye-witnesses namely Rajaram (father of the deceased) and Hanso Devi (step mother of the deceased) were present at the time of occurrence. The statement of the father of the deceased (PW-1) was only recorded and the statement of the step mother of the deceased was not recorded.

28. It was submitted that in his statement, the PW-1 has stated that Amod used to close his shop in between 9 P.M. to 10 P.M. every day and the distance from the shop of Amod to informant's house is almost 55 ft. According to the informant, Amod used to come home straightaway after closing the shop and he reached home at around 11 p.m., which creates a doubt on the story of the prosecution. The PW-1 stated that some times his tenanted room remained vacant and some times it was occupied but at the time of occurrence, no one was residing in the said room. He has further stated that at the time of occurrence, both tenants Sachin and Dinesh were not present and he did not know whereabouts, of the tenants at the relevant point of time, which also creates doubt about his testimony. The PW-8 in his deposition stated that the shop of the deceased was on the ground floor and above two floors the appellant Pawan used to live with his wife and child. If the intention of Pawan was to kill Amod, because of the ownership of the shop, then why no such incident took place earlier. The PW-8 in his statement stated that the complainant had shown him two godowns made at the ground floor of the house and one staircase and the same were shown in the map by the PW-8. But at the time of inspection there was no shop at the ground floor of the house. He had further stated that Sachin had given his statement before him and stated that there was some quarrel between the informant Rajaram and his son. All brothers of the complainant live nearby to his place and the place of incident but no other witnesses were examined. It was submitted that the PW-1 stated that he and his son used to take food together. The PW-1 stated that he was about to sit for taking food when Amit, Subhash and Pawan entered in his room. Three bullets were fired at the place of incident and two bullets hit the deceased and one bullet hit the wall but there was no mention of this particular fire in the FIR and also in the statement of PW-1.

29. Learned counsel for the appellants has vehemently attacked the alleged recoveries. One country made pistol of 315 Bore and one live cartridge was recovered from Pawan and one country made pistol of 12 Bore and one live cartridge was recovered from Amit @ Amit Yadav. From the same polythene bag (Exhibit-19), the recoveries of one empty cartridge of 12 Bore and one empty cartridge of 315 Bore (Exhibit-16) from the place of incident are also doubtful. One deformed bullet was also recovered from the place of incident. As per postmortem, one cylindrical metallic bullet from the right lung of the deceased and four pellets (Exh.-6) were recovered. He submitted that the recovery of one empty cartridge of 315 bore and one of 12 bore from the place of incident and also one country made pistol of 315 bore and 12 bore, which were allegedly recovered from the pointing out of the appellants, had been sent to Forensic Sciences Laboratory, Agra, Uttar Pradesh on 26.11.2007. Moreover, the deformed bullet which was recovered from the place of occurrence was not sent to FSL to match with the recovered cartridges and the country made pistol, even though the said recovery was made on the pointing of the appellants. The bullet recovered from the body of deceased was also not sent to the FSL to match with the country made pistol which is said to be recovered from the possession of the appellants and also with the empty cartridges recovered from the place of occurrence as the bore/dimensions of the bullet are not known. He submitted that the alleged recovery can always be in addition to the direct testimony but the recovery itself cannot be used to substitute direct evidence. He had vehemently submitted that the investigating officer (PW-8) made entry of the post mortem report in the case diary on 09.8.2007 itself and he had adequate knowledge of the recovery of the bullet from the body of the deceased and the same was sent to the Senior Superintendent of Police, Moradabad but inspite of the said fact, he did not try to obtain the same and no memo was prepared of the bullet. Admittedly, the said bullet was also not sent for examination to the FSL to be matched with the recovered weapons. He has further placed reliance on the arrest of the accused-appellant which was made on 17.8.2007 at about 05.25 a.m. and they were taken to Police Station. Thereafter at 06.30 a.m. they were taken to Parkar College and from the open place the alleged recoveries were made at about 07.00 a.m. The Parker College is a public place and surprisingly, the alleged recoveries were made from the open place which also creates great doubt about the fairness of the said recoveries. Alternatively, he has argued that the said alleged recovery is planted. Moreover, no independent witness had endorsed the alleged recoveries. Even though, only two copies of the memo of recovery were prepared but only one copy of the same was given to accused Pawan.

30. He further submitted that in the present case, total 11 prosecution witnesses were examined but from the perusal of the evidence, it is clear that there is no direct evidence against the appellant Amit @ Amit Yadav in connected Criminal Appeal No.3744 of 2011 and he is the nephew of the PW-1, who is the informant of the case and he has been falsely implicated in the present case. He further submitted that there was a dispute between PW-1 and the deceased regarding a shop and the alleged incident had taken place at the house of the informant, which also creates doubt about the place of occurrence. He further submitted that one of the eye witnesses Smt. Hanso Devi, who is the step mother of the deceased, has not been produced before the trial court and the witnesses of recovery (PW-5 and PW-6) have turned hostile.

31. Per Contra, on behalf of the State it was argued that the convict-appellants Amit @ Amit Yadav and Pawan had fired one shot each on Amod (deceased), who sustained fire arm injuries. Further, the recovery of the weapon was made on the pointing out of the appellants. The PW-1 had deposed and had been cross-examined in the year 2008. The said witness has also proved that the appellants had assaulted with the fire arms referred to above and he was also present at the time of occurrence and had witnessed the crime as stated by the informant (PW1). Therefore, learned A.G.A. contended that the presence of the witness, the place and time of incident, the use of fire arms and cause of death keeping in view of the postmortem report as well as inquest report establishes the guilt of the appellants beyond doubt. He contended that any minor discrepancy in the investigation cannot belie the said incident, where the murder had taken place. He has invited attention of the Court to the statements of witnesses to urge that there is no infirmity in the description of the manner of assault, the place of assault and the timing thereof. Once the post-mortem report confirmed the injuries as well as the timing of the injuries, the chain of events through this direct evidence leaves no room for doubt that the appellants were not guilty. Even in such situation any attempt by the prosecution witnesses to alter his/her statement later on cannot obliterate the evidence led on behalf of the prosecution to prove the commission of offence. Moreover, the recovery of weapons has been established and multiple nature of injuries sustained clearly indicates the involvement of both the appellants and the use of two firearms. It was submitted that as per ballistic report, the said weapons were used in the commission of the present offence. As the prosecution story, there is a ring of truth about it and is fully supported by medical evidence as well as material collected during investigation and therefore, by convicting and sentencing the appellants as aforementioned, the trial Court has not committed any illegality. He submitted that no case is made out on behalf of the appellants so as to dilute the case set up by the prosecution. The conviction could be based even on the solitary evidence, provided it inspires confidence, as in the present case. There is no evidence on record which remotely indicates that accused-appellants were falsely implicated in the present case.

32. Having heard learned counsel for the parties, we find that the conviction is substantially based on the evidence of Raja Ram (PW-1). He is the sole witness of the incident. When the appellants entered into his house, his son Amod was not present at that time. They did not fire at the complainant and he saw the appellants, who fired tamanchas on his son Amod. In the cross examination, he has categorically stated that the occurrence took place on 08.8.2007 at 11 o'clock night and the incident was seen in electric light of inverter. In the same light, he recognised the appellants properly. The accused Pawan is his elder son and lived separately after the marriage and the other accused Amit is his nephew. They used to visit his house sometimes and therefore, the question of identity does not arise. Defence has cross-examined this witness at length, but has not been able to elicit anything in his cross-examination to discredit his testimony that the appellants have not fired tamanchas on the deceased. His evidence clearly reveals that he was present on the spot and witnessed the incident, which is sufficient for drawing inference that the appellants have shot his son Amod by tamanchas. On 17.8.2007 at 05.25 a.m., accused persons Pawan and Amit were arrested at Kashipur Bus Station. They were brought to the Police Station and were questioned. On their pointing out, the country made pistols of 315 bore and 12 bore were recovered from the field of Parkar Inter College. One country made pistol of 315 bore and one live cartridge were recovered on the tip of Pawan and one 12 bore country made pistol and one live cartridge 12 bore were recovered on pointing out of Amit. The third accused Subhash was arrested from his residence on 08.9.2007 in the morning.

33. So far as the argument of the appellants regarding delay in lodging the FIR is concerned, the occurrence took place at about 11 PM on 08.8.2007 but the FIR was lodged next day on 09.8.2007 at about 01.00 AM (night). Learned counsel for the appellants contended that there is no explanation for the delay and the FIR is ante time. As per prosecution case the report was written exactly two hours after the incident and as such, there was no delay in writing the report, whereas according to the accused, it has been pressed before the trial court that the report has been written much later and by putting the time behind, an attempt has been made to show it within the time and too much cuttings have been made in it. The trial court on the basis of evidence had held that the Tehrir (Exh.1) has been proved by the PW-1.

34. The first core issue is with regard to doubt sought to be created about the presence of the eye witness (PW-1), who is also the father of Amod (deceased) and the convict-appellant Pawan. In the present matter, PW-1 was declared hostile for another accused Subhash, when he was brought to the witness box. In this respect, the law is settled that even that part of the statement of the hostile witness can be taken into account which supports the prosecution story provided it stands further corroborated from other material on record. In the present matter, the testimony of PW-1 cannot be doubted as it is direct testimony. The prosecution produced PW-1, whose statement was recorded on 26.6.2008 and he was also cross-examined by the defence on 26/27.6.2008. The PW-2 categorically narrated the facts and during the cross-examination this part of evidence was not contradicted. The next link is the actual assault made by the appellants with the country made pistols (tamanchas). The gun shot injuries in respect of the deceased, as is evident from the post mortem report and the recovery of the firearms used in the crime and live cartridges from the spot, have also been testified by the witnesses. The firing of the shot and manner in which the deceased received injuries have been narrated by the PW-1, do not in any way waiver in his version during the cross-examination which leaves no room for doubt that he was not present on the spot. There is no other dimension to this possible visualisation of the injuries which were caused by the firearms. It is admitted case of the prosecution that the deceased died due to gun shot injuries. The ante mortem injuries found upon the body of the deceased was caused by the firearms.

35. In the instant case, the evidence of the eye-witness (PW-1) examined on behalf of the prosecution raises no doubt on his presence at the time of actual occurrence. The eye-witness has stated that at the time of occurrence, his wife Hanso Devi was very much present but in such situation, we find that whether in the facts and circumstances of the case, it was necessary to examine such other witness especially Hanso Devi and if so, whether such witness was available to be examined and she was being withheld from the Court. If the answer is in positive, then only the question of drawing an inference may arise but at no point of time during the trial, such situation had ever happened even from the defence side or from the Court. Once the testimony of the PW-1 was trustworthy and even his testimony was intact in the cross-examination then in such situation we do not find any good ground to make any adverse reference against the prosecution to the effect that even though other witness i.e. Hanso Devi was available but she was being withheld from the Court.

36. In Vadivelu Thevar and another vs. State of Madrass1 it was observed on Page 619, as under:-

"Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict,if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."

37. We are of the opinion that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. (Ref. Lallu Manjhi and another vs. State of Jharkhand)2.

38. In the case at hand, no material/evidence has been brought on record to discard the single testimony of PW-1. However, we find his testimony to have been substantially proved at the trial. During the trial the PW-1 alleged that both the appellants had opened fire upon the deceased and it is the specific case of gunshot injury. There is another very material aspect of the place of occurrence and the manner in which the incident took place and we cannot resist and observe contrary to the investigation in the case. By no stretch of imagination, the same may be categorised as defective investigation. The investigating officer had prepared the site plan of the place of occurrence and efforts were made to recover and seize the weapon of offence.

39. No doubt, it it is well settled that the evidence of interested witness is to be scrutinized with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy then there is no bar on the Court relying on the said evidence. Interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution.

40. In State of H.P. v. Raghubir Singh3, the Supreme Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P.4, placing reliance on an earlier judgment in Rameshwar vs. State of Rajasthan5.

41. In P. Rajagopal and others Etc. vs. State of Tamil Nadu6, it has been held in para 12 that :-

"12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely. [See Apren Joseph v. State of Kerala and Mukesh v . State (NCT of Delhi)]"

(emphasis supplied)

42. In the case of State (NCT of Delhi) vs. Pankaj Chaudhary7, it is held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. In paragraph 29, it is held as under:

"29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30]."

43. In the case of Ganesan V. State8, Apex Court has held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. In the aforesaid case, the Apex Court had an occasion to consider the series of judgments of the Apex Court on conviction on the sole evidence of the prosecutrix.

44. In the present matter, nowhere it is brought on record or even to suggest that prior to the said occurrence the PW-1 had any animosity or annoyance with his son, Pawan. Mere relationship with the deceased is not a ground to discredit his testimony, if it is otherwise found to be reliable and trustworthy. In the present matter it is difficult to accept that the father, who had lost one son, would implicate the other son, who is innocent. Therefore, considering the facts and circumstances, we do not find that it is necessary to scrutinize other witnesses with more care, caution and circumspection and we hold that the testimony of the PW-1 is wholly reliable testimony, though, the memo of recovery was not made in presence of public witness. Since no public witness has been examined to the said occurrence then in such situation the statement made by PW-7 and PW-8 will have to be scrutinized with care, caution and circumspection. Considering their testimony that the recovery of country made pistols were made from the public place (bushes) which were accessible to one or all as such no reliance could be placed on such recovery. The said argument is not acceptable in this backdrop. The same is fully corroborated with the medical evidence and the injuries sustained to the deceased. In case of direct evidence and the ocular testimony of the eye witness being found to be trustworthy, reliable and cogent, it will not be necessary for the prosecution to prove the motive for crime. In the present matter, the appellants were annoyed with the settlement of the shop in question. However, we have already held hereinabove, that the testimony of the eye-witnesses could not be said to be unreliable.

45. We may gainfully refer to the following observations of the Apex Court in the case of Anand Ramachandra Chougule v. Sidarai Laxman Chougala and others9:-

"10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution.

If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.

11. The fact that a defence may not have been taken by an accused under Section 313 CrPC again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand [Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422 : (2013) 2 SCC (Cri) 427] , this Court observed : (SCC pp. 433­34, para 28) "28. ... When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt."

46. It is a trite proposition of law that in criminal trial, it is the quality of evidence which matters and not the quantity. Thus, no malafide could be attributed to prosecution case simply on that premise. Section 134 of Evidence Act does not require any particular number of witnesses to prove any fact. Plurality of witnesses in a criminal trial is not the legislative intent. Therefore, if the testimony of sole witness is found reliable on the touchstone of credibility, accused can be convicted on the basis of said sole testimony. This principle was highlighted in ''Vadivelu Thevar vs. State of Madras10, wherein it is held by Hon'ble Apex Court that "We have no hesitation in holding that the contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid down that no particular witnesses shall in any case be required for the proof of any fact." Moreover, if the direct testimony of the eye-witness is reliable, the same cannot be rejected on the hypothetically medical evidence. The ocular evidence, if reliable should be preferred over medical evidence. Moreover, in the present matter, there is no conflict between ocular evidence and medical evidence. In any event, the ocular evidence being cogent, credible and trustworthy, minor variance, if any, with the medical evidence are not of any consequence.

47. The recovery of the country made pistols and live cartridges, which were testified to be true and the said weapons utilised by the appellants for commission of offence, which was proved by Dr. R.P.S. Suman (PW-3) and Dr. P.S. Sharma (PW-4), clearly corroborate the same and hence, the argument of recovery is also not tenable, rather the prosecution version is established.

48. Having said so it would be necessary for us to hold that the trial court had rightly accepted the prosecution version and the same was proved beyond reasonable doubt. The issue as to the nature of doubt which an accused can take benefit of has been settled in our criminal jurisprudence that the benefit can be denied if the prosecution is able to prove its version with proof beyond reasonable doubt. (Ref. State of U.P. vs. Pussu11)

49. In Gangadhar Behera and others vs. State of Orissa12 it was held as under:-

"Above being the position, we find no substance in the plea that evidence of eye witnesses is not sufficient to fasten guilt by application of Section 149. So far as the observations made in Kamaksha Rai's case (supra), it is to be noted that the decision in the said case was rendered in a different factual scenario altogether. There is always peril in treating the words of a judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases (See Padamasundara Rao (dead) and Ors. v. State of Tamil Nadu & Ors. [JT 2002 (3) SC 1]. It is more so in a case where conclusions relate to appreciation of evidence in a criminal trial, as was observed in Krishna Mochi's case (supra) The inevitable result of this appeal is dismissal which we direct."

50. Close scrutiny of the evidence makes it clear that on 08.8.2007 at about 11.00 p.m. the accused/appellants had fired shots with country made pistols on the deceased, who sustained serious injuries and died. The incident was witnessed by Raja Ram (PW-1), who has categorically stated that the accused/appellants had fired one shot each on the deceased. Evidence of this witness finds corroboration from the medical evidence, wherein it has been stated that the injuries were possible to have been caused by the firearms and the cause of death was shown due to shock and hemorrhage, as a result of ante-mortem firearm injuries. Since nothing has been brought on record by the defence to controvert the stand of the prosecution, this Court does not find any reason to disbelieve the statements of eyewitness, who has described the incident in a lucid manner. The injuries sustained by the deceased were so grievous that there was no chance for his survival any longer and he would have met the instantaneous death. The accused/appellants had intention to kill the deceased.

51. Considering the facts, we are of the considered opinion that the trial court has discussed the entire evidence in detail and we have already recorded our reasons hereinabove for not accepting the stand taken on behalf of the appellants. We hardly find that there is any scope of doubt about the date, time, and place of occurrence which also established by the ocular testimony of PW-1. The recovery of the weapons on their pointing out, the utilization thereof and the manner of assault by the appellants all stood corroborated with the medical evidence and further fortified by the post-mortem report. We are also of the opinion that the inquest proceedings also do not create any doubt. The trial court is also fully justified in coming to the conclusion that there was meeting of mind established from the evidence on record. The evidence on record also indicates that all the accused had joined together on spot with the common intention of committing murder of the deceased.

52. On close scrutiny of the evidence, we do not find any error in appreciation of evidences by learned trial court and arrive at the conclusion of convicting the appellants.

53. Consequently, both the appeals, being devoid of merit, are liable to be dismissed and are hereby dismissed.

Order Date :-22.08.2022

RKP