Ravindra vs State Of U.P.
2023 Latest Caselaw 10194 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                  Reserved on 07.02.2023
 
                                                                                  Delivered on 07.04.2023         
 
Court No. - 39
 

 
Case :- CRIMINAL APPEAL No. - 4904 of 2008
 

 
Appellant :- Ravindra
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Gaurav Kakkar,Atul Tej Kulshrestha,Birendra Singh Khokher,Brij Raj Singh,Devendra Singh,Kripa Shanker Pandey,Kuldeep Singh Chahar,Mohd. Samiuzzaman Khan,Mohd.Farooq,Narendra Singh Chahar,P.S. Chauhan,Pradeep Kr. Mishra,Rajeev Kumar Sonkar,S.M.Nazir Abbas Abedi,Srikant Singh Yadav,Vinay Singh
 
Counsel for Respondent :- Govt. Advocate,A.K.Singh,V.K.Singh
 
with
 
Case :- CRIMINAL APPEAL No. - 6442 of 2008
 

 
Appellant :- Omveer And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Birendra Singh Khokher,A.C.Srivastava,Ajay Kumar Pandey,S.P.S.Chauhan
 
Counsel for Respondent :- Govt. Advocate
 
AND
 
Case :- CRIMINAL APPEAL No. - 5369 of 2008
 

 
Appellant :- Satyendra
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Ram Raj Pandey
 
Counsel for Respondent :- Govt. Advocate,A.K.Singh,V.K.Singh
 

 
Hon'ble Mrs. Sunita Agarwal,J.

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

[By Justice Sadhna Rani (Thakur)]

Heard Mohd. Samiuzzaman Khan, learned Advocate for the appellants - Ravindra and Satyendra and also for the appellant - Neetu @ Titu as an Amicus, Sri Arun Kumar Singh, learned A.G.A. and Sri Prashant Kumar Singh, learned brief holder for the State-respondent.

The appellants - Omveer and Panveer are said to have been released from jail on remission. Both of them have been served notices of the date fixed for hearing of this appeal but no one has appeared on behalf of these two accused appellants.

These three appeals under Section 374 Cr.P.C. have been preferred by appellants Omveer, Panveer and Neetu @ Titu, Ravindra and Satyendra assailing the judgment and order dated 18.07.2008 in S.T. No. 315 of 2006, Case Crime No. 1456 of 2005 under Sections 147, 148, 302/149 IPC, Police Station Baraut, District Baghpat, whereby the appellants have been convicted and sentenced as follows:-

1. under Section 147 IPC, fine of Rs. 250/- each,

2. under Section 148 IPC, fine of Rs. 250/- each,

3. under Section 302 IPC with Section 149 IPC, life imprisonment and fine of Rs. 500/- each.

In default of payment of fine the appellants have to undergo simple imprisonment of 3-3 months each.

All the punishments are to run concurrently.

Along with S.T. No. 315 of 2006 above, two other S.T. Nos. 393 of 2006 (State Vs. Panvir) and S.T. No. 395 of 2006 (State Vs. Neetu) arising out of Case Crime No. 267 of 2006 and 268 of 2006; respectively, under Section 25/27 Arms Act, Police Station Baraut, District Baghpat were also decided and resulted into acquittal of accused Panveer and Neetu @ Titu, so the appeals before this Court are only against the judgment and order in S.T. No. 315 of 2006 (State Vs. Omveer and others) whereby the appellants have been convicted and sentenced as above.

As all the three appeals are preferred against the same judgment and order dated 18.07.2008 in same S.T. No. 315 of 2006, so they have been heard together and are being decided by one and the same judgment.

As per the facts of the case, on 21.12.2005 at 17.15 hours, Pawan s/o Balwan lodged an FIR in police station Baraut, District Baghpat at Case Crime No. 1456 of 2005 that the applicant was having enmity with Surajmal regarding the dispute of drain and because of that enmity on 20.04.2005 his uncle Harvir s/o Dhara Singh was murdered in the jungle by accused persons Omveer, Panveer, Neetu @ Titu, all sons of Surajmal. On the basis of the FIR lodged regarding this murder, all the three persons had to undergo imprisonment. Recently these accused persons were released on bail. On 21.12.2005 at 4.00 p.m. when the first informant Pawan, his brother Vijendra, Deshpal s/o Jaipal and Charan Singh s/o Bhola, belonging to the same village, were coming back to their homes from the tubewell, Vijendra, the brother of the first informant was walking 15 to 20 paces ahead. When he reached in the North-East corner of the sugarcane field of Shyam Singh, Omvir, Panveer, Neetu @ Titu, all sons of Surajmal, Ravindra s/o Nawab and Satyendra s/o Krishnpal, who were already ambushed in the sugarcane field of Shyam Singh, came out with the common object and made indiscriminate firing on his brother Vijendra, who died on the spot. All the accused persons waiving their weapons in their hands and giving threats of life ran away towards the jungle.

Regarding the incident, an FIR was lodged at police station Baraut, District Baghpat as Case Crime No. 1456 of 2005 under Sections 147, 148, 302 IPC on the same day at 17.15 p.m.

The investigation was taken over by the Station House Officer, Police Station Baraut himself. On the same day from the North-East corner of the field of Shyam Singh where the dead body was found, samples of bloodstained and simple earth were taken. Two empty cartridges of 12 bore and two empty cartridges of 315 bore were also recovered from the spot, which were taken into possession and sealed as per procedure. Two recovery memos were also prepared regarding these recoveries in the light of petromax.

On 21.04.2006, accused Neetu @ Titu and Panveer were arrested by the Crime Branch, Lodhi Road, Delhi. ASI Satya Pratap Singh took them on the transit remand and these two persons were sent to jail on 23.04.2006. Accused Omveer was arrested by the Sub-Inspector, Praveen Kumar on 24.04.2006 along with a 315 bore country made pistol, with an empty cartridge in its barrel and two live cartridges of 315 bore. One empty cartridge was collected lying on the floor at the time of his arrest. Rest two accused persons, Ravindra and Satyendra, surrendered before the Court on 23.04.2006. On 06.05.2006, SSI S.P. Singh recovered one country made pistol of 315 bore with two live cartridges of 315 bore at the instance of Panveer and one country made pistol of 315 bore and two live cartridges of 315 bore at the instance of Neetu @ Titu. A memo was prepared in this regard and the recovered weapons were sealed as per procedure. Both these accused persons admitted the pistols to be the same, used by them in the murder of Vijendra. The Investigating Officer prepared site plan regarding the spot of the murder of Vijendra. Regarding recovery of weapons also, the investigation was done and the charge sheet was filed against both the accused persons; Panveer and Neetu @ Titu but as these two accused persons have been acquitted of the charges under Section 25/27 Arms Act and no appeal has been preferred against these judgments, hence, the detailed discussion of the investigation in this matter is not required.

The inquest was done on the dead body of the deceased Vijendra and the dead body was sent for postmortem the same day. The postmortem was done on 22.12.2005 and the cause of death was opined to be shock and hemorrhage due to antemortem injuries. The recovered country made pistols, live cartridges and empty cartridges were sent for examination, sanction was taken regarding cases under Arms Act and apart from chargesheets under Arms Act, the Investigating Officer filed charge sheet against Omveer, Panveer, Neetu @ Titu, Ravindra and Satyendra under Sections 147, 148, 302/149 IPC also. After summoning the accused persons, the trial court committed the cases to the court of sessions.

The trial court on 08.09.2006 framed charges under Sections 147, 148, 302/149 IPC against all the five accused persons; Omveer, Panveer, Neetu @ Titu, Ravindra and Satyendra, along with charges under Section 25/27 Arms Act against Panveer and Neetu @ Titu.

The accused persons/appellants denied the charges and pleaded not guilty. The above three sessions trials were consolidated vide order dated 03.08.2007 and the present S.T. No. 315 of 2006 was made the leading case.

The prosecution produced Pawan Kumar s/o Balwan, the first informant and the alleged eye witness as PW 1 in the trial court, who proved the incident and his report as Exhibit Ka-1; Charan Singh s/o Bhola, the other alleged eye witness as PW 2, who also proved the incident; Dr. Swadesh Kumar, as PW 3, who proved the postmortem report as Exhibit Ka-2; Ghasita Singh, retired Sub-Inspector as PW 4, who proved the inquest report as Exhibit Ka-3, Police Form-13 as Exhibit Ka-4, challani lash as Exhibit Ka-5, letter to CMO as Exhibit Ka-6, photo dead body as Exhibit Ka-7, memo of recovery of four empty cartridges as Exhibit Ka-8, memo of taking blood stained and simple earth as Exhibit Ka-9, Constable Clerk Pahal Singh as PW 5, who proved the chik FIR as Exhibit Ka-10 and G.D. 38 as Exhibit Ka-11, First Investigating Officer Laik Ahmad as PW 6, who proved site plan as Exhibit Ka-12, SSI S.P. Singh as PW7, who took Panveer and Neetu @ Titu on transit remand and proved memo of recovery of the weapons recovered from Neetu and Panveer as Exhibit Ka-13, site plan of recovery place of these weapons as Exhibit Ka-14, chik FIR of Case Crime Nos. 267/2006 and 268/2006 under Sections 25/27 Arms Act as Exhibit Ka-15; charge sheet No. 175 of 2006 as Exhibit Ka-16; S.I. Sahendra Pal Singh as PW 8, who proved site plan of Case Crime No. 267 of 2006 as Exhibit Ka-17; sanction granted by the District Magistrate as Exhibit Ka-18 and Exhibit Ka-20; charge sheet No. 140 of 2006 as Exhibit Ka-19 and charge sheet no. 141 of 2006 as Exhibit Ka-21; S.I. Praveen Kumar as PW 9, who arrested accused Omveer on 24.04.2006 along with one country made pistol, one miss cartridge, two other live cartridges and one empty cartridge lying on the floor, memo in this regard was also proved by him.

Apart from above oral and documentary evidence, prosecution also produced country made pistol recovered at the instance of Panveer as material exhibit-1, country made pistol recovered at the instance of accused Neetu as material exhibit-2, two empty cartridges of 12 bore recovered from the spot as material exhibits-3 and 4, two empty cartridges of 315 bore recovered from the spot as material exhibits-5 and 6, two live cartridges recovered at the instance of accused Panveer as material exhibits-7 and 8, two live cartridges recovered at the instance of Neetu as material exhibits-9 and 10, country made pistol recovered from accused Omveer as material exhibit-11 and three recovered cartridges from this accused as material exhibits-12 to 14.

After prosecution evidence, the statements of the accused persons were recorded under Section 313 Cr.P.C. wherein enmity regarding the dispute of drain with the deceased and his family members was admitted by accused Omveer, Panveer and Neetu @ Titu. They also stated that on 20.04.2005 Dharmendra, the brother of these three accused persons and Bala, the mother of these three accused persons were murdered by the first informant Pawan and his family members and because of this enmity, they had been falsely implicated. Accused Satyendra and Ravindra also admitted their dispute over drain with the father of the first informant and alleged their false implication on the ground of murder of Dharmendra and Bala.

From the defence side, Constable 351 Vijay Pal Singh was produced as DW 1 and Mahesh Kumar Yadav, Senior Analyst, Forensic Science Laboratory, Agra was produced as DW 2 in the trial court. As documentary evidence, the defence produced certified copy of the charge sheet in Case Crime No. 644A of 2005, under Sections 147, 148, 149, 307, 302 IPC, Police Station Baraut, District Baghpat against Balwan, Mahavir, Satvir, Pawan, Sahendra, Surendra and Smt. Harviri and certified copy of charge sheet of Case Crime No. 644 of 2005 under Sections 147, 148, 149, 307, 302 IPC, Police Station Baraut, District Baghpat against Omveer, Panveer and Neetu.

On the basis of the above evidence produced by the parties and after hearing the arguments, the trial court delivered the impugned judgment and order dated 18.07.2008 acquitting Panveer and Neetu @ Titu of the charges under Section 25/27 Arms Act and convicting all the five accused persons under Sections 147, 148, 302/149 IPC as mentioned above.

Against this judgment and order, Criminal Appeal No. 6442 of 2008 was preferred by Omveer, Panveer and Neetu @ Titu, Criminal Appeal No. 4904 of 2008 was preferred by Ravindra and Criminal Appeal No. 5369 of 2008 was preferred by Satyendra. These appeals were preferred by the appellants on the ground that the trial court had not appreciated the material evidence on record in right perspective. It had completely misread, misinterpreted and mis-appreciated the evidence on record. The reasoning recorded by the trial court was based on surmises and conjectures without completing the rattled principal of appreciation. The trial court had wrongly relied upon the interested and partisans witnesses, PW1 and P

W2 without scrutinizing their evidence on the alter of caution. The trial court has also not looked into the serious inconsistency between oral testimony and medical evidence. The appellants are wholly innocent persons. They had been falsely implicated due to village politics. Ravindra and Satyendra have also assailed the judgment on the ground that they had no enmity with the first informant or his family members.

From the version of the FIR and from the statements of the accused persons under Section 313 Cr.P.C. the enmity between both the parties was admitted that they had dispute regarding drain on their fields. On 20.04.2005 Harveer, the uncle of the first informant, was said to be murdered by Omveer, Panveer and Neetu @ Titu, all sons of Surajmal and an FIR was lodged against them. On the same day Dharmendra brother and Bala, the mother of Omveer, Panveer and Neetu @ Titu, were also said to be murdered by Balwan, father of the first informant of this case namely Pawan and Mahavir, Satvir, Sahendra and Surendra etc. and FIR was also lodged against them. It is also an admitted fact that after registration of the present FIR, Balwan, the father of the first informant of the present case was also murdered. Thus, there is a chain of murders from both side of the parties and the enmity among them is an admitted fact.

The death of the deceased Vijendra is not denied. The only question to be decided is that whether the death of Vijendra was caused by the present appellants? As per postmortem report proved as Exhibit Ka-2 by Dr. Swadesh Kumar, PW 3 the following injuries were found on the person of the deceased at the time of postmortem:-

1. (a) gun shot wound of entry - 1cmx1cm cavity on left side back of head 6 cms post to (Lt) ear, margin inverted.

(b) gun shot wound of exit - 4 cmsx2 cms just above sternum and sternoclavicular joint (Lt) side margin everted.

2. (a) gun shot wound of entry - 1 cmx1cm cavity on back of head 6 cms right to the inj. 1(a) in same plain margin inverted.

(b) gun shot wound of exit - 4 cmsx3 cms cavity deep (Lt) side of upper chest, 10 cm above (Lt) nipple, margin everted and semited. This injury correspond to injury 2(a) by probe.

3. (a) gun shot wound of entry-1 cmx1cm x cavity on abdomen, 14 cms above umblicus in midline (12 O'clock) position.

(b) gun shot wound of exit-3 cmsx2cms x cavity (Lt.) side back of chest, 6 cms. below scapula, margin everted. This inj. corrospond to inj. 3(a) by probe.

4. (a) gun shot wound of entry-1cmx1cm x cavity on mid axillary line, right side of chest, 19 cms below axilla, margin inverted.

(b) gun shot wound of exit 4.5 cmx2.5 cms cavity right side of abdomen, 4 cms right side to umblicus at 10 o'clock position, margin everted serrated. This injury correspond to inj. 4 (a) by probe.

5. abrasion 4 cmx3cms, elliptical shaped on back of fore arm, just below elbow joint (Lt.) with teeth bite mark.

6. multiple abrasion on back of hand (Lt.) in area of 4cmx4cms - 3 in numbers.

These injuries show that the deceased sustained four fire arm wounds of entry and exit each, one abrasion on back of fore arm and multiple abrasion on back of left hand. Cause of death was found to be shock and hemorrhage due to ante mortem injuries.

The first argument of the learned counsel for the appellants is that no independent witness was produced by the prosecution to support their case. The two witnesses of fact produced are PW 1 Pawan, the real brother of the deceased and PW 2 Charan Singh, the real grand father of the deceased. Both these witnesses are highly interested witnesses and their evidence cannot be relied upon.

It is true that in the FIR, three eye witnesses are named; one is first informant Pawan himself, second is PW 2 - Charan Singh, the grand father of the deceased and the third one is Deshpal, who could be called an independent witness but he has been discharged by the prosecution because he is said to be related to both the parties and admittedly, there is chain of murders between the parties so no independent witness would dare to give evidence regarding the incident.

So far as PW 1 and PW 2 are concerned, admittedly, these two persons are the real brother and real grand father of the deceased respectively but because of these persons being related to the deceased their evidence cannot be discarded on this ground alone.

The Apex Court in Vijendra Singh Vs. State of U.P., (2017) 11 SCC 129 has held that the relative 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 reiterated that it cannot be laid down as an invariable rule that the evidence of 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 cautions. 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 appellants 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 held that a relative 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 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.

In the case in hand, PW 1 and PW 2, who are the real brother and the grand father of the deceased respectively and as per prompt FIR, which has been lodged within about 1.15 hours after the incident, they have been mentioned as eye witnesses and are said to have been coming back from the tube well to their houses in the village at the time of incident. The time of the incident is 4.00 p.m. in the month of December, which can be said to be an appropriate time of coming back the villagers from their fields to their house. Hence, their presence cannot be denied on the spot. On the basis of above judgments, the statements of these witnesses are to be accepted after careful scrutiny and caution.

It is further argued by the learned counsel for the appellants that there was no motive of the incident. However, the enmity between the parties is accepted by both the parties. As per FIR, there was enmity between the parties regarding drain on their fields and admittedly, on 20.04.2005 the murder of Harvir, the uncle of the first informant and Dharmendra and Bala, the brother and mother of the accused Panveer, Omveer and Neetu @ Titu took place. Regarding this incident, the accused party lodged an FIR, Case Crime No. 644A of 2005 under Sections 147, 148, 149, 307, 302 IPC, Police Station Baraut, District Baghpat against the present first informant, his brother Vijendra, the deceased, father Balwan, uncle Mahavir, Satyavir, cousin Sahendra and Surendra s/o Charan Singh, PW 2 in the present case and Smt. Harviri w/o Ram Bihari and Case Crime No. 644 of 2005 under Sections 147, 148, 149, 307, 302 IPC, Police Station Baraut, District Baghpat was lodged by Sahendra s/o Charan Singh - PW 2 in the present case against Omveer, Panveer and Neetu, the accused persons in the present case. It is said that just some days prior to the present incident, Panveer, Omveer and Neetu were released on bail and it is the allegation that they committed murder of Vijendra.

It is argued by the learned counsel for the appellants that when earlier the murder of Harvir had been committed and according to the present prosecution version, murder of Harvir was committed by Omveer, Panveer and Neetu, then there was no occasion for the appellants herein to commit murder of Vijendra. It is also argued that when Vijendra and Pawan were coming together why the accused persons would committ the murder of Vijendra only and why they did not put to death his real brother Pawan, and his cousin grand father Charan Singh, who were also accompanying him. It is admitted fact that when an FIR, Case Crime No. 644 of 2005 was registered by Sahendra against Omveer, Panveer and Neetu regarding murder of Harvir, at the same time, Omveer, the accused in the present case also lodged an FIR against Pawan, the first informant in the present case, Vijendra, the deceased in the case, their father Balwan, uncles Mahavir and Satyavir, cousins Sahendra and Surendra s/o Charan Singh, PW 2 and Smt. Harviri. Thus, when the cross cases were registered by both the parties regarding murders of their family members and from the side of the accused, two persons; real brother and mother of Omveer, Panveer and Neetu @ Titu were said to had been murdered by the first informant of the present case and his family members, then certainly the present accused persons could be said to have a motive to commit the murder of any person from the family of the first informant Pawan s/o Balwan and the question is why only Vijendra was murdered on that day and why Pawan and Charan Singh were not put to death by the accused persons. It is the case of prosecution that Vijendra was walking 15 to 20 paces ahead of rest three persons namely Pawan, Charan Singh and Deshpal and the range of country made pistol is also supposed to be short, which cannot hit a person from a distance of 15 to 20 paces, otherwise also three persons coming behind together so Vijendra, who was walking ahead, alone to be a easy prey for the assailants to gun him down. Otherwise also it is upto the accused persons that how many persons they wanted to put to death or they could put to death at the time of the incident. Apart from these two cross criminal cases, one civil case is also said to be pending between the parties and the parties are said to have been continuously making complaints against each other, to the higher authorities. Thus, the fact of enmity is also admitted to the accused persons. The enmity is a double edged weapon, which can lead the accused to commit the offence and could also get them falsely implicated.

Thus, whether the charges framed could be proved by the prosecution, on the basis of evidence produced by them, is to be seen on the merits of the case.

It is argued by the learned counsel for the appellants that there is no motive before accused Ravindra to commit the offence but as his father Nawab is the witness in Case Crime No. 344 of 2005 above against the first informant and his family members so, he has been falsely implicated.

It is further argued by the learned counsel for the appellants that Satyendra is not the family member of the accused persons. He has been implicated falsely, though, in their statement under Section 313 Cr.P.C. both accused Satyendra and Ravindra have not disclosed themselves not to be the family members of the rest of the accused persons, rather they are said to have been implicated because the first informant Pawan and his family members had committed murder of Dharmendra, the brother of Neetu @ Titu and mother of Dharmendra, Bala on 20.04.2005. This statement of the accused persons does not disclose as to when the enmity of the murder of Dharmendra and Bala was between Panveer, Omveer and Neetu @ Titu on one side and the first informant and his family members on the other side, then what was the reason to implicate Satyendra falsely by the first informant. Otherwise also, in Surinder Singh Vs. State (Union Territory of Chandigarh), 2021 SCC OnLine SC 1135, the Apex Court in para-23 ruled "that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eyewitness...."

In the judgment Stalin Vs. State represented by the Inspector of Police, (2020) 9 Supreme Court Cases 524, the Apex Court held that motive is not an explicit requirement under IPC, though 'motive' may be helpful in proving case of prosecution in case of circumstantial evidence. Absence of motive does not disperse prosecution, if prosecution succeeds in proving the same. The Apex Court found that as per fact of that case there were three eye witnesses of the incident and prosecution successfully proved the case against the accused by examining those three eye witnesses, and the motive was found to be irrelevant. In the present case also as PW 1 and PW 2 are said to be the eye witnesses of the incident, hence, absence of not proving the motive by the prosecution would not effect the prosecution case, if the eye witnesses could prove the role of accused persons.

In judgment Yogesh Singh Vs. Mahabeer Singh and others, (2017) 11 Supreme Court Cases 195, the Apex Court held that if there is absence of motive, that is of no consequence and pales into insignificance when direct evidence established the crime.

Thus, now it is to be seen that whether the prosecution has succeeded in proving the charges on the basis of evidence of eye witnesses?

It is further argued by the learned counsel for the appellants that the FIR is ante time because the inquest, which is said to have been conducted on the same day, its report does not contain the names of the accused persons and the FIR is said to have been received by the Magistrate in the Court on 03.01.2006. Thus, it is submitted that had the FIR been lodged in the proper time, the inquest report would have contained the names of the accused persons and the FIR would have reached in the court in proper time.

If we go through the inquest report, it is true that it does not contain the names of the accused persons. However, it does contain the case crime number and the sections of IPC. In this regard, the view of the Apex Court in the judgment Tehseen Poonawalla Vs. Union of India and another, (2018) 6 Supreme Court Cases 72 is noteworthy. Para-39 of this judgment is apposite to mention here:-

"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 report of inquest is primarily intended to ascertain the nature of the injuries and the apparent cause of death. On the other hand, it is the doctor who conducts a post-mortem examination who examines the body from a medico-legal perspective. Hence it is the post-mortem report that is expected to contain the details of the injuries through a scientific examination."

In judgment Radha Mohan Singh Vs. State of U.P., (2006) 2 SCC 450, the three Judges bench of the Apex Court formulated the principles in the following terms:-

"15....Thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited viz. to ascertain as to whether a persons 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 FIR, names of the accused or the names of the eyewitnesses or the gist of their statements, nor is it required to be signed by any eyewitness."

Thus, it is clear that as per Section 174 Cr.P.C. only on the information of the death, a report of apparent cause of death describing such wounds, fractures, bruises, and marks of injuries found on the body and stating in what manner or by what weapon, if any such marks appear to have been inflicted, would be prepared. As per this provision, there is no need to mention the names of the accused persons or the case crime number in the inquest report.

As is the view of the Apex Court also, as noted above that as the purpose of holding an inquest is limited, it is primarily intended to ascertain the nature of the injuries and the apparent cause of death, so the absence of the names of the accused persons in the inquest report does not make the FIR ante time.

So far as the argument that the FIR reached to the concerned Magistrate on 03.01.2006 only, this delay only cannot be a ground for claiming the FIR to be ante time, specifically when the first informant has specifically stated in his statement that he had lodged an FIR regarding this incident by moving written complaint and the written complaint (tehrir dated 21.12.2005) had been proved by him as Exhibit Ka-1. PW 5 Constable Clerk Pahal Singh also proved that on the basis of the written complaint filed by the first informant, he registered the case at Case Crime No. 1456 of 2005 on 21.12.2005 at 17.15 hours at Police Station Baraut, District Baghpat. PW5 had proved the Chik FIR as Exhibit Ka-10 and the G.D. No. 38 prepared on the same day as Exhibit Ka-11. If the FIR reached before the Magistrate on 03.01.2006, it can be a mistake on the part of his clerk also, who may have placed the same before the Magistrate with delay even after receiving the same, otherwise also the only ground that the FIR was received by the Magistrate concerned late, cannot be a ground for rendering the FIR ante time.

It is also argued by the learned counsel for the appellants - accused persons that as per challani lash and post mortem report, apart from fire arm wounds, injury nos. 5 and 6 were also found, which can be read as follows:-

5. abrasion 4 cmx3cms elliptical shaped on back of fore arm just below elbow joint (Lt.) with teeth bite mark.

6. multiple abrasion on back of hand (Lt.) in area of 4cmx4cms - 3 in numbers.

It is argued that these injuries are not mentioned in the inquest report rather as per photo lash Exhibit Ka-7 the injuries on the back of fore arm of the deceased below the left elbow joint and on the back of left hand were shown by the doctor to the constable, who took the dead body to mortuary for post mortem and in challani lash, Constable Vipin Malik and Vijay Pal Singh have mentioned these injuries in their hand writing. It is true that these two injuries have not been mentioned in the inquest report but the same have been mentioned in the postmortem report and an endorsement to this effect was made by these above two Constables on challani lash also when they produced the dead body for postmortem. In this regard, again the view of the Apex Court in judgment Tehseen Poonawalla (supra) in para-39 is relevant wherein the Apex Court opined as under:-

"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 report of inquest is primarily intended to ascertain the nature of the injuries and the apparent cause of death. On the other hand, it is the doctor who conducts a post-mortem examination who examines the body from a medico-legal perspective. Hence it is the post-mortem report that is expected to contain the details of the injuries through a scientific examination."

Thus, it is for the doctor conducting the postmortem to mention the details of injuries in the postmortem report. The person preparing the inquest report being not an expert, some times may miss some injuries on the corpus of the deceased. Otherwise also the Constable, who carried the dead body to the mortuary, stated as 'DW 1' in the court that the Sub-Inspector had handed over the dead body to him in sealed condition and in the same sealed condition he handed over the dead body in the mortuary. Thus, as per the defence witness only, the dead body was handed over to the Constables and they handed over it in the Mortuary for postmortem and there was no occasion in between to tamper with the seal of dead body.

It is further argued that the prosecution has not explained these injuries in their statements, so in our opinion, while indiscriminate firing is alleged on the deceased, which is proved from the postmortem report also that four entry and four exit fire arm wounds are found on the corpus of the deceased and during this indiscriminate firing the deceased might have fell down and sustained these abrasions.

It is again submitted by the learned counsel for the appellants that there is difference between the ocular and medical evidence. As per statement of the witnesses, the deceased was shot dead by the assailants near the sugarcane field of Shyam Singh, thus, the level of assailants and the deceased must be the same, but as per postmortem report some of the injuries of the deceased were found to be upward down, which show that those injuries could only be inflicted on the deceased if the assailants were standing on the some height.

If we go through the postmortem report, injury nos. 1 and 2 can be said to be upward down injuries but injury nos. 3 and 4 are the parallel injuries. In this regard, PW 3 the doctor conducting postmortem was cross examined, but he could not specify the directions of entry wounds. He also stated that he could not specify that whether the bullet hit downward to the deceased. In this regard, PW 6 the Investigating Officer, who prepared site plan, has stated in his cross examination that from the place shown by letter 'B' in the site plan the assailants are said to have fired on the deceased and the dead body of the deceased was lying at the place shown by letter 'A' in the site plan. There is difference of 06 inches in the level of chak road and the field, otherwise also there are two entry and two exit wounds on the corpus of the deceased of the same level. Those might have been inflicted on the person of the deceased prior to the rest of the two injuries, which are shown to be upward down and it is possible that after getting injured by two fire arm shots, when the deceased fell down or he was in the process of falling down, rest two injuries might have been inflicted on his body and in that situation the deceased might have sustained two upward down fire arm injuries.

It is also argued by the learned counsel for the appellants that these injuries on the person of the deceased are caused by at least two types weapons because the measurement of three exit wounds is 4cmx2cm, 4cmx3cm and 4cmx5cmx2.5 cm, while in one injury the measurement of the exit wound is only 3cmx2 cm, which shows that the injuries were caused by at least two type of weapons while recovery is of two pistols only and both of them are of the same 315 bore.

As per recovery memo, the police had recovered from the spot four empty cartridges; two of 12 bore and two of 315 bore, which clearly show that the weapons of 12 bore and 315 bore both were used at the time of the incident. Admittedly only two weapons of the same bore (315 bore) were said to have been recovered from Neetu @ Titu and Panveer, though both of these accused have been acquitted regarding the case of Arms Act, but the police could not recover other fire arms used in the murder from the rest three accused persons. So the possibility of using two types of weapons at the time of the incident cannot be ruled out. As all the weapons used at the time of incident could not be recovered, the appellants cannot take advantage of the argument that the injuries appear to have been inflicted by two types of weapons, while the weapon of only one type had been recovered by the police.

It is further argued by the learned counsel for the appellants that as per statement of PW 1 after receiving the gun shot injuries the deceased fell down on the chak road itself, whereby PW 4 Ghasita Singh, who conducted the inquest report of the deceased, found the dead body of the deceased five paces away from the road in North-East corner of the field. As per FIR also Northern- Eastern corner of the field of Shyam Singh was the place where ambush was made by the assailants and they fired on the deceased from that place only. After a person is fired while he is walking on chak road, he cannot be said to be compulsorily fell down at the same place where he got injured. He might have followed the assailants in injured condition or he might have tried to snatch the weapon of any of the assailants as is clear from the postmortem report that as per injury no. 5 some teeth bite mark were also found below the left elbow joint of the deceased; otherwise also after receiving the gun shot injury the deceased fell down on the road or in the corner of the field and that PW 1 stated that his brother fell down on the chak road and the dead body of the deceased was found lying in the North- East corner of the field do not alone falsify the prosecution version. This is a minor contradiction which does not effect the merit of the case.

PW 1 the first informant, in his statement, has proved his complaint (tehrir) as Exhibit Ka-1 and has narrated the whole incident by saying that on 21.12.2005 at 4.00 p.m. he along with his brother Vijendra, Deshpal and Charan Singh was coming back to his village from the tube well, Vijendra was walking 15 to 20 paces ahead of them, all were walking on foot. When Vijendra reached infront of the sugarcane filed of Shyam Singh, Omveer, Panveer and Neetu @ Titu, Ravindra and Satyendra, who were the natives of his village, came out and with common object of committing murder of Vijendra, indiscriminately fired at Vijendra. The fires hit his brother and he died on the spot. All the accused persons giving threat of life, eloped towards South of the fields. This incident was witnessed by him, Deshpal and Charan Singh. Prior to this incident, on 20.04.2005, his uncle Harveer was also murdered at the hands of Omveer, Panveer, Dharmendra and their mother-Bala, wherein the accused persons had to go jail. Before the present incident, the accused persons were out of jail. They had a dispute over the drain with the accused persons. Thus, PW 1, who is first informant, had lodged the FIR of this incident just after 1.15 hours of the incident. He had proved the FIR as Ex Ka1 and in his cross examination, nothing contradictory or discriminatory had come before the court. Thus, his statement proved to be wholly reliable.

PW 2, who happens to be the grand father of the deceased has also adduced the same evidence as PW 2 in the trial court that on the date of incident he along with Deshpal, Pawan and Vijendra was going towards village at about 4.00 p.m. when they reached near the field of Shyam Singh, Satendra, Ravindra, Neetu @ Teetu, Panveer and Omveer alighted from that field equipped with country made pistols in their hands and shot at Vijendra, who fell down there and died on the spot. The accused persons giving threat of life eloped towards the South direction. This incident was witnessed by Charan Singh himself and by Pawan and Deshpal also.

It is further argued that PW 2 is not the eye witness of the incident as in his statement he narrated that the deceased was walking 4-5 paces ahead of them, whereas the prosecution case is that the deceased was walking 15 to 20 paces ahead of the rest persons. It is the prosecution case that the dead body was sent by the tractor, while PW 2 stated that the dead body was sent by the police jeep. These contradictions make it clear that PW 2 was not on the spot, he was not an eye witness and being the grand father of the deceased he had been introduced as witness in the case. It is, however, further pointed out that PW 2 when asked during his deposition to recognise Ravindra in the court, he could not recognise Ravindra rather he pointed out at Neetu @ Titu to be Ravindra. It is an admitted fact that at the time of deposition, which has been recorded after three years of the incident PW 2 Charan Singh was 82 years old person. He had come to the Court to adduce his evidence and during his statement as he started crying remembering the death of his son/grand son, he stated that he had become very weak. His eye sight had also become weak so he was unable to recognise the accused persons. However, in the Court he refused to recognise the rest of the accused persons.

This fact is not disputed that PW 2 is the grand father of deceased Vijendra. He had lost his grand son and after losing his grandson he had also lost his nephew, Balwan the father of the deceased. He had also lost one other nephew Harveer earlier, allegedly at the hands of the present accused persons and because of old age of 82 years, his eye sight would certainly be very weak to recognise the accused persons. Admittedly, all the accused persons are from the village of Charan Singh PW 2 itself. If his eye sight would have been proper it was not hard for PW 2 to recognise the accused persons, who are the natives of his own village. Hence, this argument of the learned counsel for the appellants also has no substance.

So far as the contradiction regarding distance of the deceased that he was walking 4-5 paces ahead or 15-20 paces ahead of the witnesses is concerned, this minor contradiction occurring in the statement of PW 2 does not make the statement of PW 2 unreliable. Otherwise also, as PW 1 has adduced evidence in the Court, which is found to be reliable, the statement of PW 1 only is enough to prove the charges against the accused persons.

On the basis of the judgment in State of Madhya Pradesh Vs. Chhaakki Lal and another, (2019) 12 Supreme Court Cases 326, when PW 1, though he is real brother of the deceased, has established the case by trustworthy testimony, minor contradictions and omissions are found to be immaterial.

In the statements of PW 1 and PW 2 it has clearly come that the named persons in the written report were the accused persons only who fired on the deceased and put him to death. The counsel for the accused - appellants Panveer, Omveer and Neetu @ Titu appearing in the trial court did not give even suggestion to PW 1 that the murder of Vijendra was not committed by them. None of the Advocates of any of the five accused persons had given the same suggestion to PW 2 that the accused persons did not commit murder, hence, in our opinion, the trial court has correctly reached at the conclusion that the accused persons were guilty of the offence under Sections 147, 148, 302/149 IPC.

In view of the above discussions, we find that the trial court has rightly placed reliance on the testimony of eye-witnesses and that the prosecution story stood fully proved beyond all reasonable doubt against each of the accused-appellant. They have rightly been held guilty for the offence punishable under Sections 147, 148, 302/149 IPC. Adequate sentence has also been passed against each of them.

Thus, all the appeals lack merit and are, accordingly, dismissed. The conviction and sentence recorded by the Sessions Judge, Baghpat against all accused-appellants is hereby upheld.

Appellants - Omveer and Panveer have been granted remission by the State Government and have been released from the jail. They need not to surrender before the trial court. Accused Ravindra, Satyendra and Neetu @ Titu are said to be in jail. As their appeals have been dismissed, they shall continue to undergo their rest period of imprisonment.

Certify this judgment to the court below for necessary compliance. The compliance report be submitted through the Registrar General, High Court, Allahabad.

The trial court record be transmitted back immediately.

Order Dated:- 07.04.2023

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