Ram Autar @ Jhunda And Another vs State Of U.P.
2022 Latest Caselaw 10906 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                  Reserved on 26.05.2022
 
                                                                                  Delivered on 23.08.2022
 

 

 
Court No. - 39
 

 
Case :- CRIMINAL APPEAL No. - 1580 of 2010
 

 
Appellant :- Ram Autar @ Jhunda And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Apul Misra,Abhilasha Singh,Ajay Kumar Pandey,Imran Ullah,Mr Istiyaq Ali,P.N. Misra,Shivam Yadav,Vidya Kant Rai,Vijendra Singh
 
Counsel for Respondent :- Govt. Advocate
 
AND
 
Case :- CRIMINAL APPEAL No. - 1124 of 2010
 

 
Appellant :- Hem Singh And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Apul Misra,Krishna Kant Dubey,P.N. Misra,Rajesh Kumar Vishwakarma,Santosh Kumar Dubey,Shesadri Trivedi
 
Counsel for Respondent :- Govt. Advocate,Ram Babu Sharma
 

 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

(By Justice Sadhna Rani (Thakur))

Heard Sri S.S. Sangwan and Sri Rajesh Kumar Vishwakarma, learned Advocates for the appellants and Sri Rupak Chaubey, learned A.G.A. for the State-respondents.

The above two appeals have been preferred by the accused appellants against the judgment and order dated 20.02.2010 passed by the 2nd Additional Sessions Judge, Court No. 1, Budaun in Sessions Trial No. 514 of 2002 connected with Sessions Trial No. 515 of 2002 arising out of Case Crime No. 110 of 2001 connected with Crime No. 152 to 155 of 2001, Police Station Dhanaura, District Budaun, whereby all the appellants were convicted under Sections 302/34 I.P.C. and 25 Arms Act and sentenced with imprisonment for life and fine of Rs. 10,000/-, each with default stipulation of two years rigorous imprisonment and fine of Rs. 3000/- with default stipulation; respectively.

The brief facts of the case are that on 08.07.2001 at about 14.00 hours, a hand written report was submitted by Shripal at the Police Station Dhanari, Budaun stating therein that in the year 1982 Bhukan son of Udal of the village was murdered wherein the father of the first informant, Ram Singh was accused. Later on, the parties arrived at a compromise in the case. On 08.07.2001 at about 12.00 Noon, Ram Singh the father of the first informant was coming back to his home after ploughing his fields and the first informant was also following him, as soon as they reached at the hut of Ajay Pal, Ram Autar @ Jhunda s/o Bhukan, Harkesh s/o Balveer, Hemsingh s/o Pooran and Cholendra s/o Avran, all residents of the village came out of the hut, equipped with illegal weapons (pistols) and fired at Ram Singh, the father of the first informant, who fell down and died. The first informant turned back and fled away making hue and cry. After hearing the screams of the first informant and sounds of firing the villagers Sopali, Jeeraj and many others came and witnessed the incident. All the accused persons after committing the murder dragged and left the dead body of Ram Singh infront of the house of Rameshwar and fled away uttering that they had taken the revenge of the death of their father.

On the basis of this hand written report of the first informant, Case Crime No. 110 of 2001 under Section 302 I.P.C. was registered against Ram Autar, Harkesh, Hem Singh and Cholendra. The investigation was taken over by S.H.O. Sri Geetam Singh Yadav and after his retirement by Inspector Prakash Narayan Yadav. The investigation culminated into filing of the charge sheet against all the four accused persons under Section 302 I.P.C. The second Investigating Officer Shri Prakash Narain Yadav at the instance of four accused persons recovered four illegal weapons (Pistols), memo was prepared in this regard and all the weapons were sealed separately as per the procedure. The investigation of the case under the Arms Act was handed over to HCP Hari Sharan Saraswat, who had prepared site plans of the places of recovery, recorded statements of the witnesses and the accused persons and filed four charge sheets under Section 25 Arms Act against all the four accused persons. He also obtained permission of the District Magistrate to initiate proceedings against the accused persons.

After receiving of five charge sheets; one under Section 302 I.P.C. and four each under Section 25 Arms Act, the trial court took cognizance of the offences, complied with the provisions of Section 207 Cr.P.C. and committed all the five cases to the Court of sessions. The Sessions Judge, Budaun after receiving the files framed the charges under Section 302/34 I.P.C. against all the four accused persons on 12.07.2002 and on the same day a separate single charge under Section 25 Arms Act was framed against all the four accused persons namely, Ram Autar, Hem Singh, Harkesh and Cholendra.

The prosecution produced as many as six witnesses in the trial to bring home the guilt of the accused persons.

P.W. 1, Shri Pal, the first informant and P.W. 2 - Sopali s/o Hari Ram both are the eye witnesses of the incident; P.W. 3 Dr. N.K. Verma had proved the post mortem report of the deceased-Ram Singh; P.W. 4 - S.I. Geetam Singh the Investigating Officer of Crime No. 110 of 2001 under Section 302 I.P.C. had recorded the statements of the first informant and the witnesses, prepared site plan, received post mortem report, copied the documents and statements in the case diary and after that he was transferred from the concerned police station. P.W. 5, Shri Prakash Narayan Yadav, the second Investigating Officer took over the investigation on 24.07.2001 and on the basis of the orders of the District Judge, Budaun recorded the statements of all the four accused persons in jail and on their pointing out recovered four country made pistols, prepared memo of recovery of four weapons, sealed the weapons separately as per the procedure and got registered Case Crime No. 152-155/2001 under Section 25 Arms Act against all the four accused persons, separately. This witness had also proved the check F.I.R. and G.D. prepared by the deceased Constable Veer Singh. He had also proved the charge sheet under Section 302 I.P.C. filed against all the four accused persons.

P.W. 6 - Hari Saran Saraswat, the Investigating Officer of the case under Section 25 Arms Act had prepared memo of the blood stained and plain earth collected from the spot, the inquest report and the documents relating to the inquest. He had also recorded the statements of the complainant and the witnesses, prepared the site plan of the places of recovery of weapons and filed four separate charge sheets under Section 25 Arms Act against all the four accused persons, separately. He also received permission from the District Magistrate to file the cases against all the four accused persons.

As documentary evidence, the prosecution produced written report by the first informant Exhibit Ka-1, post mortem report of deceased Ram Singh Exhibit Ka-2, site plan of Case Crime No. 110 of 2001 Exhibit Ka-3, memo of recovery of recovered illegal weapons Exhibit Ka-4, site plan of the recovery place of the weapons Exhibit Ka-5, charge sheet under Section 302 I.P.C. Exhibit Ka-6, Check F.I.R. of Case Crime No. 110 of 2001 Exhibit Ka-7, certified carbon copy of G.D. of Case Crime No. 110 of 2001 Exhibit Ka-8, Check F.I.R. of Case Crime No. 152-155 of 2001 under Section 25 Arms Act Exhibit Ka-9, G.D. of this case Exhibit Ka-10, inquest report Exhibit Ka-11, photo dead body Exhibit Ka-12, specimen stamp Exhibit Ka-13, challan dead body Exhibit Ka-14, report to Chief Medical Officer Exhibit Ka-15, report to R.I. Exhibit Ka-16, memo of blood stained and normal earth Exhibit Ka-17, site plan of the recovery places of weapon Exhibit Ka-18, four charge sheets against the appellants/accused persons under Section 25 Arms Act Exhibit Ka-19 to Ka-22, D.M. Permission regarding all the four accused persons under Arms Act Exhibit Ka-23 to Ka-26, report of FSL regarding blood stained clothes Exhibit Ka-27 and report of FSL regarding bullets Exhibit Ka-28.

The prosecution had also produced country made pistol of 315 bore as material Exhibit-1, two tested empty cartridges of 315 bore as material Exhibits - 2 and 3, bullets recovered from the body of deceased as material Exhibits-4 and 5, three country made pistols of 12 bore each, recovered from Hem Singh, Cholendra and Harkesh as material Exhibits - 6, 7 and 8.

After completion of the prosecution evidence, the statements of the accused persons were recorded under Section 313 Cr.P.C. wherein they had denied the incriminating circumstances against them, asserted recovery of weapons to be false and alleged to be impleaded falsely on the basis of enmity.

The accused persons produced D.W. 1 - Ajay Pal s/o Shiv Narain and D.W. 2 Rameshwar s/o Sita Ram in their defence.

After hearing the rival submissions and going through the evidence on the record, the trial court vide judgement and order dated 20.02.2010 returned the finding of conviction of all the four appellants/accused persons under Sections 302/34 I.P.C. and 25 Arms Act and sentenced them.

It is argued by the learned counsel for the appellants that no independent witness had been produced, all the prosecution witnesses were the interested witnesses. The first information report was ante time. The medical evidence did not support the ocular evidence. The statements of the witnesses were contradictory. Sanction of the District Magistrate had been obtained after institution of the proceeding. The recovered pallet had not been sent to the ballistic expert. The recovery shown was false and planted. Hence, the prayer is made to allow the appeals.

Per contra, learned A.G.A. opposed the prayer of the learned counsel for the appellants and argued that it was a day light murder. The prosecution had produced two eye witnesses of the incident who have fully supported the prosecution case. The defence could not dispute the presence of the eye witness of the incident. All the formal witnesses had proved the documents prepared by them. No reason could be assigned to falsely implicate the accused persons. There is no material discrepancy in the statements of the eye witnesses. The minor discrepancies in the statements of the witnesses were natural to occur due to lapse of time. The murder weapons had been recovered at the instance of the accused persons. Hence, the prosecution case is fully proved. The judgement of the trial court deserves to be confirmed and the appeals are liable to be dismissed.

All the four accused persons were charged for committing the murder of Ram Singh the father of first informant in furtherance of the common intention of all of them. All the four accused persons were also charged for being in illegal possession of the country made pistols.

As per the prosecution version, on 08.07.2001 at 12 O'clock in the noon Ram Singh, father of the first informant, while coming back to his home from his fields was murdered by the accused persons due to their old enmity.

The fact of murder of Ram Singh is admitted but as per the prosecution version Ram Singh was murdered by the present accused persons, whereas according to the accused persons some unknown persons had committed the murder and the accused persons had been falsely implicated due to enmity between the parties.

As per the prosecution version, fires of Ram Autar @ Jhunda and Hakesh hit deceased Ram Singh, Hem Singh and Cholendra had also fired at deceased Ram Singh, but their fires did not hit the deceased who had died on the spot.

At this stage, it is apposite to go through the injuries found on the person of the deceased as per the post mortem report:-

1. Fire arm wound of entry of size 2 cm. X 2 cm. on the left side of face, 1 cm lateral to the left nostril, blackening was present around the area of 4 cms. X 4 cms.

2. fire arm wound of exit on the right side of skull, 2 cms - below the right ear of size 3 cms. X 3 cms./skull deep. Skull was damaged. Wound was bleeding. After opening the wound, muscles and veins were found lacerated. Skull bone was found fractured.

3. Fire arm wound of entry of size 1 cm X 1 cm X 2 cm, cavity deep on the back side of the left chest, on the outer part of second theoresic vertebrae inside the muscles and veins, both sides livers and membrane of heart were found lacerated. Between 4th and 5th ribs a pellet of yellow metal was found stuck.

As per the opinion of the doctor, the death was caused due to shock and hemorrhage as a result of ante mortem injuries.

The injuries of the deceased are also not disputed by the counsel for the appellants except the fact that these injuries were not caused by the accused persons.

It is argued by the learned counsel for the appellants that there is no motive for the crime and the accused persons had been falsely implicated due to enmity admitted between the parties.

The first information report states that in the year 1982 Bhukan s/o Udal was murdered in the village wherein the father of the first informant (deceased of the present case), Ram Singh was an accused. Later on, the parties arrived at a compromise. It was stated therein that due to the enmity of the accused Ram Autar, who happened to be the son of the deceased Bhukan, the murder of Ram Singh was committed by all four accused persons with common intention to take revenge of Ram Autar. This motive had been reiterated by the P.W. 1 and P.W. 2 in their examinations-in-chiefs but these witnesses had not been crossed on this occasion by the defence. All the accused persons in their statements under Section 313 Cr.P.C. had also claimed their false implication due to enmity. Though, admittedly no enmity had been shown with the other three accused persons i.e. Harkesh, Hem Singh and Cholendra with the deceased Ram Singh, but they were said to be the companions of the accused Ram Autar in committing the murder, who had direct enmity with deceased Ram Singh.

In Yogesh Singh Vs. Mahabeer Singh and others, (2017) 11 SCC 195, it has been settled that even the absence of motive is of no consequence and pales into insignificance, when direct evidence establishes the crime. Therefore, in a case where there is direct trustworthy evidence of the witnesses as to the commission of the offence, motive looses its significance. Therefore, if the genesis of the incident or motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence cannot be discarded only on the ground of the absence of motive, if otherwise the evidence is worthy of credence.

In the case at hand, admittedly there was enmity between the deceased and accused Ram Autar, as deceased Ram Singh had allegedlymurdered Bhukan, the father of accused Ram Autar. Other accused persons had helped the main accused Ram Autar in taking his revenge by committing the murder of Ram Singh.

It is settled law that enmity is a double edged weapon which may compel one party to commit the offence or the other party to implicate the accused persons falsely. Since the enmity between the parties is an admitted fact the Court has to assess the evidence very carefully as the weight of the evidence and trustworthiness of the evidence is a relevant factor for reaching at any conclusion.

Now it is to be seen as to whether the witnesses produced by the prosecution had proved the prosecution case in such manner that on the basis of their evidence the court could return the findings of conviction of the accused persons.

The present case is entirely based on the ocular evidence of P.W. 1, Shripal the first informant and the son of deceased Ram Singh and P.W. 2 Sopali, the nephew of the deceased.

P.W. 1 - Shripal stated in his examination in chief that the incident was about 4-1/2 years old. It was 12 o'clock in the noon, he along with his father was coming back to his home after ploughing their fields. As soon as they reached near the hut of Ajay Pal, Ram Autar @ Jhunda, Harkesh, Hem Singh and Cholendra came out of the hut, armed with illegal country made pistols and fired at his father. Being hit by the fire, his father fell on the ground. He ran away raising alarm. Hearing his cries and the sound of the fires Sopali, Jeeraj etc. came and witnessed the incident. The accused persons after committing the murder of his father dragged the dead body and left it infront of the house of Rameshwar. They fled away uttering that they had taken the revenge of murder of their father. It was also stated by this witness that 19-20 years prior to the present murder, Bhukan (father of accused Ram Autar) was murdered and deceased Ram Singh his father was an accused in the said murder case. P.W. 1 had proved the written report submitted by him in the police station.

The narration of P.W. 2 - Sopali about the incident is same as that of P.W. 1. He described that 5-1/2 years back, when at 12 o'clock in the noon while he was coming back from his fields, Ram Singh (deceased) and Shripal (P.W. 1) were ahead of him and he was 5-6 paces behind them. When they reached near the hut of Ajay Pal, Ram Autar @ Jhunda, Harkesh, Hem Singh and Cholendra came out equipped with illegal weapons. Ram Autar stated that now they would take revenge of the murder of his father and all the four persons fired at Ram Singh, who had died on the spot. After firing at deceased Ram Singh, the accused persons dragged his dead body and left it infront of the chaupal of Rameshwar and fled away.

Rest of the witnesses are the formal witnesses, who had proved the reports prepared by them.

So far as the arguments of the appellants' counsel that P.W. 1 and P.W. 2 are the related witnesses and being related they are interested witnesses, it is admitted fact that P.W. 1 is the son of the deceased and P.W. 2 is the real nephew of the deceased Ram Singh. But as the incident took place in the presence of these witnesses so their evidence cannot be said to be unworthy of trust just being related to the deceased.

In this regard the Apex Court in Vijendra Singh Vs. State of U.P., (2017) 11 SCC 129 has held that the related witness is a natural witness and explained that close relative who is a natural witness cannot be regarded as interested witness. The term ''interested witness' postulates that the witness must have some interest in having the accused somehow or other convicted for some animus or some other reasons. It is stated that it cannot be laid down as an invariable rule that the evidence of an interested witness can never form the basis of conviction, unless corroborated to a material extent to any material particular by independent evidence. All that is necessary, is that, the evidence of interested witness should be subjected to a careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, does it may, by itself, be sufficient in the circumstance of a particular case to base a conviction thereupon. It is also opined that there is no reason why a relative / interested witness would implicate the accused for the murder of their relative leaving behind the real culprit.

The Apex Court in Rajesh Yadav and another Vs. State of U.P., (2022) Online SC 150 has held that a related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstance. A related witness can also be a natural witness. If an offence is committed within the precincts of the house of the deceased, the presence of his family members cannot be ruled out and they assume the position of a natural witness. A relative witness would become an interested witness only when he desires of implicating the accused in rendering conviction on purposes. When the court is convinced with the quality of the evidence produced, notwithstanding the classification as related / interested witness, it becomes the best evidence, such testimony being natural adding to the degree of probability, the court is to make reliance upon it in proving of fact.

In case of Rajesh Prasad Vs. State of Bihar and another, 2022 SCC Online SC 23, the Apex Court has held that the testimony of an interested witness cannot be discarded on that ground alone. It would only require the court to be more cautious, scrutinize the evidence carefully, evidence otherwise, cogent and convincing cannot be rejected on the ground that there was no independent witness. Ultimately, therefore, it shall all depend on the facts and circumstance of the case. It is also to be kept in mind that it shall be those, closed to the deceased, who shall be most keen that the real culprit be booked.

Now, the Court has to find out on the basis of the evidence produced by the prosecution whether the prosecution witnesses had succeeded in bringing home the guilt of the accused persons? In the case at hand, P.W. 1 being 30 years old son of the deceased was coming back along with his father after ploughing the fields and at that time at about 12 noon, the incident had taken place. Thus, the presence of this witness (P.W. 1) cannot be suspected. In the first information report also, which had been registered just after two hours of the incident, the presence of P.W. 1 and P.W. 2 both had been shown at the place of occurrence. In the site plan, which was prepared on the date of the incident the presence of P.W. 1 had been shown on the spot. Moreover P.W. 1, in his cross examination, had not been given suggestion by the defence that he was not present on the spot at the time of occurrence. Though the P.W. 2 had been given suggestion by the accused counsel, in his cross examination, that he did not witness the occurrence and some unknown persons had committed the murder of his father, but the accused persons had been implicated falsely had not been suggested to P.W. 2. Apart from this, in their statements under Section 313 Cr.P.C. none of the accused persons had stated that the murder was committed by some unknown person.

The learned counsel for the appellants had also disputed the place of murder pointing out contradiction in the statements of P.W. 1 and P.W. 2. P.W. 1 in his statement had stated that all the accused persons came out of the hut and at once started firing at his father and in the last four lines of the statement of P.W. 1 he had stated that the accused persons started firing from the place where they were sitting in the hut. P.W. 2, on the other side, stated that at the time of firing all the four accused persons surrounded the deceased Ram Singh. Thus, pointing out this contradiction the statements of P.W. 1 and P.W. 2, it is argued by the learned counsel for the appellants that the testimony of the witnesses not reliable and the finding of conviction based on their evidence is not proper.

It is true that P.W. 1, at one point in his statement, had stated that the accused persons fired from the place where they were sitting in the hut, but this statement can be said to be a variation on his part as in the first information report and in the cross examination of P.W. 1 as also in the statement of P.W. 2, every where it had come that the accused persons fired at the deceased when they came out of the hut. Moreover, as per P.W. 1 the distance between the hut and the place where his father was hit was about one yard. As per P.W. 4 also, this distance was about 1 to 1-1/2 or 2 meters, so the fact that whether fire was made from inside the hut or after accused came out of the hut does not make much difference.

In Kalabhai Hamirbhai Kachhot Vs. State of Gujrat, 2021 SCC OnLine SC 347, it was held that the exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.

In Menoka Malik Vs. State of West Bengal, (2019) 18 SCC 721, it was held by the Apex Court that "it is a well settled position of law that the testimony of a witness cannot be discarded in toto merely due to the presence of embellishments or exaggerations." It is not uncommon for witness to make exaggeration during the course of evidence. But merely because there are certain exaggerations, improvements and embellishments the entire prosecution story should not be doubted. It is the duty of the court to separate the chaff from the grain. Minor variations in the evidence which do not go to the root of the matter need not to be given undue importance as they do not materially alter the evidence/credibility of the eye witness as a whole.

Thus in the case at hand, variation in the version of P.W. 1 that the accused persons fired from the place where they were sitting in the hut in light of the rest of the evidence do not render his whole evidence unreliable.

It is also argued by the learned counsel for the appellants that these witnesses, i.e. P.W. 1 and P.W. 2 were not the eye witnesses of the incident because as they had claimed that the dead body of the deceased was dragged by the accused persons from the place of the murder to the chaupal of Rameshwar, no bruises or abrasions had been found on the person of the deceased and as per statement of the doctor in case the deceased was dragged there was a possibility of causing abrasions on the person of deceased. As no abrasion had been found on the person of the deceased, so the version of the eye witnesses that the deceased was dragged by the accused persons becomes false.

From the first information report to the statements of the witnesses every where it was averred that after murder of deceased Ram Singh, his dead body was dragged by the accused persons from the place of incident, i.e. from infront of the hut of Ajay Pal to the place near the chaupal of Rameshwar. In the site plan also, same thing had been shown, and the distance from the place of murder to the place where the dead body was found, was stated to be about 40 paces by the Investigating Officer P.W. 4.

So far as the statement of the doctor with regard to dragging of the dead body is concerned, he has stated, in his cross examination, that if a person is dragged in the position of his lying down at the floor the possibility of dragging marks/ abrasion would be there. Thus, the doctor had expressed only "possibility of dragging marks or abrasion" in the condition the body was dragged. The doctor had nowhere stated that it was necessary that in every dragging, the dragging marks or abrasion were bound to occur. Thus, as per the version of the doctor also, though there was possibility of dragging mark/abrasion on the person of the deceased, in case the body was dragged but it was not absolutely necessary that the dragging the body from one place to another for about 40 paces would cause any mark or abrasion on the body of the deceased.

It is admitted fact that from the place of incident to the place where the dead body was found by the police, no blood trail was found by the Investigating Officer. But the Investigating officer P.W. 4 had found blood at the place of murder and P.W. 6, A.S.I. Hari Sharan Saraswat had collected the blood stained and plain earth from the spot. The memo in this regard had been proved by P.W. 6 as Ext. Ka-17.

P.W. 4 stated that where the deceased was shot at, that place was shown by the letter 'B' in the site plan. It was also stated that blood was found near the hut of Ajay Pal. Though, P.W. 6 stated to have collected the samples of blood stained and normal earth from the place where he found the dead body but in the memo of testing of the samples the place where-from they were taken is not mentioned. It is only mentioned therein that the blood stained and normal earth was related to case Crime No. 110 of 2001 under Section 302 I.P.C. The statements of P.W. 4 and P.W. 6 both were recorded more than 7 years after the incident. As the place of collection was not mentioned in the memo, the witnesses after 7 years of the incident could not be said to have remembered the said fact. The contradiction pointed out in the statement of P.W. 4 and P.W. 6 can not create any doubt on the version of the witnesses P.W. 1 and P.W. 2 that they had witnessed the incident. Even otherwise, no purpose would have been served by changing the place of occurrence and the prosecution would not be benefited in any manner. The contradictions in the statements of P.W. 1 and P.W. 2 regarding the place wherefrom the sample of blood stained and normal earth was taken can neither change the place of occurrence nor it can be said to create any dent in the prosecution story that P.W. 1 and P.W. 2 were the witnesses of the incident. Thus, the learned counsel for the appellants would not get the benefit of this argument too.

It is further submitted by the learned counsel for the appellants that as per version of P.W. 1, his father had not taken food in the morning as he had left for the fields at 6.00 a.m. P.W. 3, doctor, however, stated that the deceased might have taken food 6 to 7 hours before his death. In our opinion, these two statements cannot be said to be contradictory. The statement of the doctor and the post mortem report show that the stomach of the deceased was found empty which corroborates the version of P.W. 1 that his father had not taken food in the morning. The doctor (P.W. 3) on suggestion only explained the condition of the stomach at the time of post mortem. There is, thus, no contradiction in the statement of P.W. 1 and the doctor (P.W. 3) in this regard.

It is admitted fact that a bullet of yellow metal was found from the person of the deceased at the time of probing the injury no. 3 by the doctor. Though, in this regard, the report of the Forensic Science Laboratory was summoned, which is on the record, but in the absence of necessary marks of straitions the recovered bullet could not be compared with the testing bullets.

It is also claimed that as per P.W. 1 (the first informant), the first fire was made by appellant - accused Ram Autar which hit his father from the back and that was made from a distance of about one yard and the second fire was made by Harkesh but if the post mortem report of the deceased is perused, the injury no. 3 which was on the back of the chest could be attributed to the accused Ram Autar but if according to version of P.W. 1, this fire was made from a distance of one yard only then there must be blackening or tattooing (characteristic of close range wound) on the injury no. 3, but the doctor had not found any such sign. The doctor rather opined that this fire could have been made from the distance of more than 2-3 feet and this distance could also be 10 to 15 feet or 20 feet or more than 20 feet. The doctor had also opined that the injury no. 1 was having blackening and could be inflicted from a distance of 2-3 feet. The deceased was fired on his back from a close range according to the witness but there was no blackening and tattooing on injury no. 3 which makes the statement of P.W. 1 unreliable.

To deal with the above submission, we may note that it is true that P.W. 1 stated that the fire which hit at the back of his father was opened by Ram Autar from about the distance of one yard but no blackening and tattooing on injury no. 3 had been found. In our opinion, P.W. 1 is a villager who had made the guess work while explaining the manner in which the deceased was shot. He neither measured the distance nor his guess could be said to be accurate from any angle. Otherwise also, a person whose father is shot dead before his eyes cannot be expected to describe the distance of fires with mathematical precision. We may also note that the injury no. 1 was found to have been caused from a close range. There may be some confusion in the mind of P.W. 1 about injury no. 1 and injury no. 3 while he was describing the details of the incident witnessed by him.

In Abdul Sayeed Vs. State of Madhya Pradesh, (2010) 3 SCC (Cri) 1262, it was held that in case of any contradiction in the medical evidence and ocular evidence, where the eye witnesses' account is found credible and trustworthy, the medical opinion pointing to alternative possibilities cannot be accepted as conclusive. Eye witnesses' account requires careful independent assessment and evaluation for its credibility.

In the present case, there is nothing on record to show as to why the prosecution the real son and nephew of the deceased would falsely implicate the accused persons and let the actual culprits go free. The admission of enmity between the parties in this case shows that if the case of murder of the father of accused Ram Autar ended in a compromise, then it was only the accused having cause of action against the deceased and the first informant had no axe to grind because of being beneficiary. Thus, in our opinion there is no reason before the first informant to implicate Ram Autar and specifically the other three accused persons falsely.

It is also argued by the learned counsel for the appellants that the first information report is ante time. As per the check F.I.R., the first information report was registered on 08.07.2001 at 14.00 hours and the inquest was done at 15.00 hours on 08.07.2001 but the names of the accused persons were not mentioned in the inquest report or the papers prepared at the time of the inquest, which shows that upto 3.00 p.m. on 08.07.2001, the first information report had not been registered and the names of the accused persons was not brought into picture This argument of the learned counsel for the appellants has no force, in asmuch as, in the inquest report and the related documents the Case Crime No. is well mentioned, which proves the lodging of the first information report before the inquest and other proceedings. In Rajesh @ Raju Chandulal Gandhi and another Vs. State of Gujrat, (2002) 4 SCC 426, the Apex Court has observed that for non-mentioning number of the first information report and the names of the accused persons in the inquest report, no inference can be drawn that the first information report was ante time.

In Tehseen S. Poonawalla vs Union Of India (2018) 6 SCC 72, the Apex Court has observed that the purpose of holding an inquest is limited. The inquest report does not constitute substantive evidence, hence, matters relating to how the deceased was assaulted or who assaulted him and under what circumstances ? are beyond the scope of the report. The inquest report is primarily intended to report the injuries and the apparent cause of death.

In Radha Mohan Singh alias Lal Saheb and others Vs. State of U.P. (2006) 2 SCC 450, in para-15, the Apex Court has held that it is well settled by a catena of decisions that the purpose of holding the inquest is limited viz. to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the F.I.R., names of the accused or the names of the eyewitnesses or the gist of their statements in the report nor it is required to be signed by any witness.

As per Section 174 Cr.P.C. also, there is no requirement of mentioning the details of crime number registered to report the crime in the inquest report.

Thus, in the light of the above decisions of the Apex Court and the clear provision of Section 174 Cr.P.C., the above argument of learned counsel for the appellants has no force.

It was further urged by the learned counsel for the appellants that only one yellow metal bullet was shown to have been recovered from the person of the deceased in the post mortem report, but in the court two bullets were produced by the Investigating Officer which makes the investigation tainted.

This fact though seems to be correct, but in our opinion, this can be only a flaw on the part of the Investigating Officer but would not go to the root of the matter so as to demolish the whole prosecution story. Otherwise also, as the investigating Officer or P.W. 6, who had proved the bullets produced in the court, had not been cross-examined on this point and as such no clarification could come in this regard.

In Ankush Maruti Shinde and others Vs. State Maharashtra (2019) 15 SCC 470, the Apex Court has held that the benefit of lapse in the investigation and/or unfair investigation cannot be given to the persons, who are the real culprits, to those who had committed the offence.

In Gangadhar Narayan Nayak alias Gangadhar Hiregutti Vs. State of Karnataka and others, (2022) SCC OnLine SC 337, the Apex Court has held that the order of cognizance of the offence and the whole trial cannot be vitiated unless such glaring illegality is shown in the investigation which amounts to the miscarriage of justice. If the fault on the part of the Investigating Officer does not go to the root of the case, the whole investigation cannot be thrashed away.

Thus, apart from some discrepancies, which were pointed out by the learned counsel for the appellant and which do not go to the root of the case the statements of the eye-witnesses are found to be reliable. Their presence on the spot was natural. Their evidence is convincing, which cannot be rejected just for the fact of being related to the deceased.

So far as the defence witnesses, D.W. 1 - Ajay Pal and D.W. 2 - Rameshwar are concerned, Ajay Pal - D.W. 1 stated that the said offence was not committed by the present accused persons and Ram Singh was murdered in the field near the village by some unknown persons. D.W. 2 - Rameshwar also stated that the murder of Ram Singh was committed outside the village on the pathway but they did not witness the incident. They were inside their houses and came out hearing the sounds of fire. They stated that the culprits were not the villagers rather they were outsider and that the present accused persons were not the persons who committed the murder. Thus, both the witnesses had adduced negative evidence. In the statement of the witnesses the place of occurrence is different. D.W. 1 disclosed the place of murder to be the field outside the village and whose field it was, had not been disclosed. While D.W. 2 stated that the incident took place outside the village on the pathway. Admittedly, both these defence witnesses were not the eye witnesses. They were, thus, adducing hearsay evidence. Further, none of them had reported the crime to the police by moving any application or affidavit that the present accused persons were not the real culprits and some unknown person had committed the murder. After 08 years of the incident, for the first time these two witnesses had deposed before the trial court about the incident. Their statements under Section 161 Cr.P.C. were not recorded. The positive prosecution evidence, thus, can be brushed aside for the negative evidence of these defence witnesses without any cogent basis.

With regard to the offence under Section 25 of Arms Act, the police made recovery of murder weapon/other pistols at the instance of all the four accused persons. The police officer making recovery had proved the recovery memos in the court. The Investigating Officer had proved the investigation made by him, the sanction of District Magistrate taken by him, charge sheet, check F.I.R. and G.D. prepared by the concerned Constable.

It is argued by the learned counsel for the appellants that regarding offence under Section 25 Arms Act sanction from the District Magistrate was taken after filing of the present case so the cognizance under Section 25 Arms Act was defective.

In this regard, Section 39 of Arms Act would be apposite to be noted.:-

"39. Previous sanction of the district magistrate necessary in certain cases.--No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate."

Thus, the previous sanction of the District Magistrate is necessary for institution of a case under the Arms Act.

In the instant case, all the charge sheets in Case Crime No. 152 to 155/2001, under Section 25 Arms Act had been submitted on 24.08.2001 and the court concerned had taken cognizance on 19.09.2001. The sanction order of the District Magistrate regarding all these crime numbers was dated 31.08.2001. These sanction orders were proved by the Investigating Officer P.W. 6 as Ext-Ka-23 to Ka-26. Thus, it is clear that the sanctions were taken before the proceedings were initiated against the accused persons in the court. Thus, the argument of learned counsel for the appellants are liable to be rejected.

It is also submitted by the learned counsel for the appellants that the investigation in the case of Arms Act was made by an officer, who was junior to the officer, who had registered the first information report. Hence, such investigation cannot be said to be fair.

Learned counsel for the appellants has drawn the attention of the court to the judgement in Deewan Singh Vs. State of U.P. and others, Manu/UP/1671/2019 wherein this Court has held that if the Investigating Officer is subordinate to the Station Officer, who had initiated the proceedings and the junior officer is appointed at the same police station only then the charge sheet shall be vitiated. In Makrand Vs. State of U.P., Manu/UP/0049/2022 the Division Bench of this court also held that the investigation by a junior/subordinate officer cannot be said to be a fair investigation.

Going through the record we may note that the recovery of the murder weapon and other pistols from the accused persons were made by S.O. Prakash Narain Yadav on 19.08.2001 and the investigation was taken over by Hari Sharan Saraswat, who according to his own statement, on 19.08.2001 was working as HCP at the concerned police station. Admittedly, the S.H.O. was senior officer and HCP Hari Sharan Saraswat was his subordinate and both were working at the same police station. Thus, on the basis of above judgements, the investigation done by HCP Hari Sahran Saraswat in a case registered by S.O. Prakash Narayan Yadav being a subordinate officer, cannot be said to be fair.

Further, the charge framed under Section 25 Arms Act against all the accused persons by the court concerned in all four cases was a single charge in place of four separate charges framed against each of the four accused persons. This is also an irregularity on the part of the trial court.

There is no independent witness of the recovery. The recovery of the alleged murder weapon and other illegal pistols at the instance of the appellants, thus, becomes tainted and the finding of the trial court regarding the same are erroneous.

Thus, on overall consideration of the evidence, we are in full agreement with the observation of the trial court with regard to decision in Case Crime No. 110 of 2001 under Section 302 I.P.C. The conclusion arrived by the trial court in Case Crime No. 110 of 2001 is logical and tangible and reasonably sustainable. The appellants could not make out a case of interfering with the impugned judgement of the trial court in this regard. So far as the charge under Section 25 Arms Act against all the accused persons is concerned, the investigation of the charge under Section 25 Arms Act being done by the subordinate officer cannot be said to be fair investigation and other irregularities committed by the trial court all the accused persons deserve to be acquitted under Section 25 Arms Act.

The appeals are partly allowed.

Criminal Appeal No. 1580 of 2010 - Ram Autar @ Jhunda and another Vs. State of U.P. and Criminal Appeal No. 1124 of 2010 - Hem Singh and another Vs. State of U.P. are dismissed with regard to S.T. No. 514 of 2002, Case Crime No. 110 of 2001, under Section 302 I.P.C. The appeals against S.T. No. 515 of 2002, Case Crime Nos. 152 to 155 of 2001 under Section 25 Arms Act are allowed.

The conviction with regard to Section 25 Arms Act against all the four accused persons is hereby set aside. The personal bonds of all the appellants in Case Crime No. 152 to 155 of 2001 are cancelled and sureties are discharged.

The appellants, Hem Singh and Cholendra are on bail. They are to be taken into custody in the Case Crime No. 110 of 2001 under Section 302 I.P.C. and be sent to the jail to serve out the sentence. A copy of the judgement be sent to the lower court for compliance and to report back to this Court.

The trial court record be sent back immediately.

Order Date :- 23.08.2022

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