Abhinesh vs State Of U.P.
2023 Latest Caselaw 11005 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 29
 

 
Case :- CRIMINAL APPEAL No. - 1626 of 2009
 
Appellant :- Abhinesh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Kamal Krishna,Apul Mishra,Diwakar Tiwari
 
Counsel for Respondent :- Govt. Advocate,D.P.Singh
 
And
 
Case :- CRIMINAL APPEAL No. - 1627 of 2009
 
Appellant :- Dinesh @ Lambari
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Kamal Krishna,Diwakar Tiwari
 
Counsel for Respondent :- Govt. Advocate,Dharmendra Pratap Singh
 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble J.J. Munir,J.

(Delivered by Justice Sunita Agarwal)

1. Heard Sri Rajiv Lochan Shukla, learned counsel for the appellant, Sri Arun Kumar Singh, learned A.G.A. assisted by Mr. Prashant Kumar Singh, the Brief Holder for the State of U.P. and Sri Dharmendra Pratap Singh, learned counsel for the informant.

2. Three connected Appeals Nos.1263 of 2009, 1626 of 2009 and 1627 of 2009 arise out of Case Crime no.302 of 1997 registered under Sections 147, 148, 302/149, 302/120B IPC Police Station-Thariaon, District-Fatehpur.

3. The trial against two accused persons namely Abhinesh and Dinesh @ Lambri was registered as Sessions Trial no.01 of 1999 and concluded with the judgment and order dated 28.02.2009 passed by the Additional District and Sessions Judge, Court no.8, Fatehpur, whereby the abovenoted appellants namely Abhinesh and Dinesh @ Lambri have been convicted for the offences under Sections 148 and 302 read with Section 149 IPC, which is subject matter of challenge in the aforesaid two criminal appeal nos.1626 of 2009 and 1627 of 2009.

4. The criminal appeal no.1263 of 2009 (Ashok Kumar and others vs State of U.P) is directed against the judgment and order dated 28.02.2009 in Sessions Trial no.441 of 2007, which also arose out of Case Crime no.302 of 1997 whereby the trial Court had convicted two appellants namely Ashok Kumar and Anand Kumar under Sections 148, 302/149 IPC. The third accused Rajendra Nath Trivedi was acquitted of the charges under Sections 147, 148, 302/149 and Section 302/120B IPC.

5. As the trial of two above noted sets of appellants were conducted at different point of time and set of evidence in both cases are different, the abovenoted three appeals are being decided by two separate judgments simultaneously.

FIR and Investigations:-

6. The first information report of the incident registered as Case Crime no.302/1997 was lodged on 22.11.1997 at 11.00 hours. The date and time of the incident indicated therein was 22.11.1997 at 11.00 hours (11.00 a.m). The distance of the Police Station as indicated in the Check report was 17 kms towards West and the place shown was Gram Ramua. The written report given by informant Shailendra Pratap Singh @ Babloo s/o Malkhan Singh, resident of Gram Ramua, Police Station-Thariaon, District Fatehpur narrated the incident.

7. It was stated therein that the deceased father of the informant namely Malkhan Singh was having a long enmity with accused Rajendra Nath and his family. Around 10 years prior to the incident, the deceased was shot by Rajendra Nath, Abhinesh and Virendra wherein Rajendra and others were sentenced by the Court. On 22.11.1997 at about 11.00 a.m., while deceased Malkhan was going towards his fields, and the informant was behind him, and at that point of time, the uncle of the informant Deshraj Singh alongwith his son namely Jitendra Pratap Singh were also returning to the village after switching off their tubewell, they all saw that the accused persons alighted from the fields of Rajaram Singh carrying weapons in their hands. Rajendra Nath was carrying double barrel gun and his son Abhinesh was having 315 bore country made pistol (Tamancha). Dinesh @ Lambri was carrying Tamanchas, Ashok Kumar had rifle and Anand Kumar was carrying gun. All the accused persons carrying their weapons came on the road and gheraoed the deceased. On the exhortation of the appellant-Anand that the deceased may not be spared this time as he was saved earlier, all the accused persons opened fires at the deceased with the intention to kill him. The deceased tried to save himself by sitting down and running away from the spot but being hit by the fires, he fell down and died on the spot. The informant, his uncle and cousin Jitendra started crying with fear and sorrow. At that time, some villagers named in the written report had reached the spot and watched the incident. They all challenged the accused persons who ran away carrying their weapons while picking cartridge shells from the spot towards West. While leaving the dead body on the spot, the first informant had reached the police station to lodge the report.

8. In S.T. no.01 of 1999, in the trial against Abhinesh and Dinesh @ Lambri, the written report was proved by P.W-1, the uncle of the informant namely Deshraj Singh whose testimony was recorded on 21.11.2005.

9. We may note, at the outset, that the informant of Case Crime no.302 of 1997 was murdered before the trial of S.T no.01 of 1999 could commence. The prosecution evidence in this case was commenced in the year 2005 after death of the informant. The Check FIR was proved by Constable Moharrir S.I. Shyam Narayan Singh as P.W-3.

10. In his testimony, P.W-3 categorically stated that he was posted in P.S-Thariaon on the post of Constable Moharrir and a written report was brought by informant Shailendra Singh at about 13.00 hours. The case was registered on the said report and the Check FIR was proved as Exhibit Ka-2, being in his handwriting and signature by P.W-3. The entry in the G.D no.24 dated 22.11.1997 at about 13.00 hours had been proved as Exhibit Ka-3, the carbon copy had been prepared in the same process. It was stated by P.W-3, in cross, that he could not bring the original G.D in the Court as it was weeded out because long time had elapsed. P.W-3 was confronted about the compliance of Section 157 Cr.P.C. in cross examination. He stated that he sent the report from the police station on 23.11.1997 through Dak at about 9.00 a.m, entry of which may be in the Dak bahi which was not brought in the Court. The suggestions that no such report was prepared on 22.11.1997 in original nor any G.D entry was made and the report was not sent to the senior officials, were categorically refuted by P.W-3.

11. P.W.-5, S.I. Manindra Kumar Singh stated on oath that on receipt of the information of the murder of Malkhan Singh, after the case was registered, he went to the spot of the incident in Village Ramua along with S.O Shri M.P. Verma. The inquest was prepared by him in his own handwriting on the instructions of the S.O after appointment of Panchas (inquest witnesses). The inquest report was proved as Exhibit Ka-'5' by P.W-5 being in his handwriting. The inquest report and the related papers were proved by P.W-5 as Exhibit Ka-'6' and Ka-'9', being in his handwriting. P.W-5 stated that the sealed body was sent to the Mortuary with Constables Shiv Mangal Tiwari and Vindhyawasini Singh. He was confronted about some cutting and overwriting in the inquest report and refuted the suggestion that the inquest was not prepared on the spot.

12. P.W-6, the Investigating Officer, S.I-M.P. Verma, stated that he was posted as Station House Officer in P.S-Thariaon on the date of the incident and had received the investigation himself. After copying the written report and G.D in the case diary, he recorded the statement of informant Shailendra Pratap Singh @ Babloo after reaching the spot of the incident. The site plan was prepared at the instance of the informant and proved as Exhibit Ka-'10' by P.W-6, being in his handwriting and signature. The memo of collection of the bloodstain and plain earth dated 22.11.1997 was proved as Exhibit Ka-'11', in the handwriting and signature of P.W-6. The statement of witnesses were recorded, thereafter, the statement of accused persons Abhinesh and Dinesh @ Lambri were recorded on 22.11.1997 in judicial custody with the permission of the Court. The entry with regard to the recovered articles namely bloodstain and plain earth having been sent to the forensic laboratory was made in the case diary on 15.12.1997.

13. P.W-6 was, thereafter, transferred but rejoined and received investigation again, which was transferred to the CBCID on 22.01.1998 under the order of the State Govt, entry of which was made in the case diary. The investigation was, thereafter, completed by the CBCID.

14. P.W-6 stated that he had reached at the place of the incident on 12.30 p.m., stayed there for 2.00-3.00 hours, the body was sent for the post mortem in his presence. He was confronted about the manner in which the body had been taken to the post mortem house. P.W-6, in cross, stated that the case was not registered in his presence and he had reached at the spot of the incident by that time and the investigation was received by him only. The place of the incident was about 17 kms from the Police Station Thariaon and via Fatehpur the distance was about 30 kms. He was confronted about some entries in the site plan. On confrontation about the statement of the witnesses, P.W-6 stated that he had recorded statement of Kunware Singh on 08.12.1997, who reported of having seen the incident. He did not record the statement of Kuber Singh. When confronted about the delay in recording the statement of aforesaid witness, P.W-6 clarified that Kunware Singh was not met before 08.12.1997. P.W-6 was further confronted about some entries in the case diary and of the name of Kunware Singh missing there.

15. He was further confronted about the delay in recording the statement of witnesses and the entry in parcha dated 08.12.1997 wherein it was written that the informant stated that he would bring the witnesses to the police station as he had taken legal advise. About the said entry in the case diary dated 13.12.1997, P.W-6 was confronted and stated that the informant told him that he and his uncle had taken advise of the lawyers and they knew as to what statement was to be given by the witnesses. P.W-6, in cross, stated that during investigation he could come to know that Rajendra Nath was lodged in the District Jail Raibareilly on the date and time of the incident. P.W-6 stated that he did not record the statement of Deshraj Singh and refuted the suggestion of the report being ante time and a result of deliberation.

16. P.W-7 is the Investigating Officer of CBCID who started investigation on 27.01.1998. He recorded statement of the accused persons in the lock up under the order passed by the Chief Judicial Magistrate. The statement of the previous Investigating Officer M.P. Verma (P.W-6) was recorded on 04.02.1998. The statement of Check writer was also recorded by him. P.W-7 stated that he recorded statements of eye witnesses Kuber Singh @ Kunware Singh, Deshraj Singh and Jitendra Pratap Singh besides other witnesses in the Village Ramua. He stated, on his own, that Kuber Singh was also known as Kunware Singh. P.W-7 proved that the statement of the first informant Shailendra Pratap Singh @ Babloo s/o deceased Malkhan Singh was recorded by him on 11.02.1998. The statements of other formal witnesses were also recorded. After completion of the investigation, chargesheet was submitted against two accused namely Dinesh @ Lambri and Abhinesh on 21.02.1998, proved as Exhibit Ka-'12'. While investigation against other accused persons was continuing, P.W-7 was transferred. He was confronted about the entries in the case diary and stated that he did not make any query from the previous Investigating Officer as to why the statement of Deshraj Singh was not recorded. He himself recorded the statement of Deshraj after about 2¾ months of the incident, i.e 04.02.1998. The statement of Deshraj (P.W-1) about accused Rajendra Nath, recorded in the Court was put to P.W-7, who had denied by saying that:-

"उसने मुझे यह नही बताया था कि

राजेन्द्र की तरह का व्यक्ति मुरैक्षा बाँधे मौजूद था."

17. P.W-7 was further confronted about the statement of Durga Shankar and Kuber Singh and stated that he did not record their statements, on his own, rather extracted what was told to him. The suggestion that the investigation was made by him falsely in connivance with the informant, was refuted by P.W-7.

18. P.W-4 doctor R.K. Mishra, the is post mortem doctor proved the injuries on the person of the deceased as under:-

External examination:

"1. Blackening was present on entry wound of firearm about an area of 3cm x 2cm on left side of neck below 5cm left ear around the wound about area of 3cm. This wound is towards inside the neck.

2. Scratch mark about 5cm x 2cm on left neck bone.

3.Lacerated wound about 2cm x 1cm muscle deep inside on left cheek. Two pellets were obtained from this wound.

4.Lacerated wound about 2cm x 1cm on left forehead bone deep muscle inside. One small iron pellet was obtained from this wound.

5. Lacerated wound about 2cm x 1cm on left eye. Left eye was bulged out after bursting. Three small pellets were obtained from left eye cavity.

6. Entry wound of firearm in the middle bone 6cm towards back side of left side chest and 20 cm below left scapula."

19. P.W-4 further stated that he had conducted post mortem at about 2.30 p.m. The body was brought by two constables named in the paragraphs hereinabove and they had identified the dead body. The deceased was aged about 53 years.

Internal Examination:-

"It was an average build body. Rigour mortis was present on the entire body. There were no sign of rotting. Eyes and mouths were closed. On internal examination, 22 pellets were recovered from wound no.1. The membrane of both lung were lacerated, ½ litre blood was present therein. All arteries of the neck were lacerated. Membrane of stomach was also lacerated around 4 ounce yellow colour semi digested food was found in the stomach, which could not be identified in any category of food. Small intestine was empty, large intestine was ½ filled. Liver and spleen were lacerated. One litre blood were present in the stomach.

It was opined by P.W-4 opined that deceased had sustained fire arm injuries and the cause of death was hemorrhage and shock as a result of injuries sustained by fire arm."

Estimated time of death was about one day.

20. P.W-4 further stated that iron Pellets (total 28 in number) found from the body of the deceased were sealed and sent to the police. The police papers were received by him. The post-mortem report was proved by P.W-4 as Exhibit 'Ka-4', being in his handwriting and signature. In cross, P.W-4 was confronted about the distance and the manner of injuries. Several suggestions were given to him as to how those injuries could occur. P.W-4 stated that the deceased might have taken food around 4-6 hours prior to the death. He was confronted about estimated time of death suggested by him being 24 hours. On confrontation, P.W-4 stated that there could be variation of 6 -7 hours in the estimated time. On re-examination, P.W-4 denied his previous statement about the estimated time of death. He was confronted by the Court about the presence of rigor mortis on the dead body. He lastly stated that from the presence of the rigor mortis on the dead body, the estimated time of death could be more than 24 hours but less than 36 hours. He also admitted that the rigor mortis may vary with the weather conditions. The formal witnesses had, thus, proved the reports prepared by them.

21. On a perusal of their cross examination, as noted above, it is evident that nothing adverse could be brought before us which would have material bearing on the prosecution story. Some of the issues raised by the counsel for the appellants from the cross examination of the formal witnesses would be appreciated at the appropriate stage in the later part of this judgment.

Eyewitnesses:-

22. Now, we may go through the statements of witnesses of fact, who are two in number. As noted above, the informant Shailendra Pratap Singh @ Babloo s/o deceased was murdered prior to the initiation of the trial, the written report submitted by the informant was proved by his uncle Deshraj Singh, who was also projected as an eye witness. The second witness, P.W-2 is Kuber Singh s/o Kartar Singh.

23. P.W-1 stated on oath that the deceased was his elder brother. In the murder of one Surendra Nath, elder brother of accused Rajendra Nath, deceased Malkhan Singh was convicted with death sentence, however, on the mercy petition allowed by the President of India, he was released from the prison after serving 8 years of sentence. Rajendra Nath and others were having grudges against the deceased, the accused persons also made an attempt to kill him prior to the present incident, wherein they were convicted under Section 307 IPC. On the fateful day, i.e 22.11.1997, at about 11.00 a.m, the deceased was going to the jungle with his son Shailendra Pratap @ Babloo. P.W-1 and his son Jitendra Pratap were coming back to the village from their tubewell. At that point of time, from the fields of Rajaram where 'Moonj' and 'Kharpatwar' were standing, one person looking like Rajendra Singh tying 'Moraichha' alighted, carrying gun. P.W-1 then stated that he was not Rajendra Nath Trivedi rather he was a different person who was looking like Rajendra Nath Trivedi. Other accused persons were also with him. On the exhortation of accused Anand, all the accused persons opened fires on the deceased who though tried to escape but being hit by the fires, fell down and died on the spot. Durga Shankar, Kuber Singh and Balram came from the village on hearing their cries and witnessed the entire incident. On the challenge thrown by them, accused persons ran towards West while carrying their weapons and collecting cartridge shells.

24. It is then stated by P.W-1 that he alongwith his nephew Shailendra (informant) went to the Police Station with the written report and lodged the criminal case. The written report was proved by P.W-1, being in the handwriting of informant Shailendra Pratap Singh. He stated that the signature of the informant was existing on the report. During the course of his testimony, in the examination in chief, P.W-1 stated that his nephew Shailendra Pratap Singh was murdered and some of the accused persons in the case in question were also involved in the said incident, which was reported by him as informant.

25. He (P.W-1) further stated that the Investigating Officer interrogated him in relation to the incident. In cross, recorded on 28.11.2005, P.W-1 stated that he was accompanied to the Court by two more witnesses namely Kuber Singh and Balram and third witness Durga Shankar was not accompanying them. P.W-1 was then confronted about his family tree and the landed properties owned by all his brothers including the deceased. He admitted that the deceased was convicted with death penalty in the murder of Surendra Nath and was released on remission. He did not know as to when case under Section 307 IPC was lodged by Malkhan Singh against the accused persons. He was further confronted about the murder case of Shailendra Pratap Singh, the informant of this case and stated that witnesses Kuber and Durga Shankar were not witnesses in that case and that Durga Shankar's brother Shambhu was the witness therein.

26. On further confrontation, P.W-1 stated that he went to his field at about 7.00 a.m on the day of incident. His house was at the distance of 300 meters North to the place of the incident. His son was accompanying him and they went to irrigate their field through tubewell, which they started around 8.00 a.m. His younger son Sonu brought food to the field around 8.00-9.00 a.m. He stated that they took about 10-15 minutes in reaching his tubewell from his house and he did not see the accused persons at that point of time.

27. He was further confronted about his presence on the spot of the incident and the manner in which he had witnessed the incident. P.W-1 stated that he was at a distance of 15-20-25 paces from the place of murder and when he saw the accused persons and as soon as he reached at the spot, his brother was attacked and at that time itself he saw the accused persons. His brother was coming from the village and was at a distance of 25-30 paces from him. All the accused persons had opened fires which hit his brother. They all attacked the deceased from the front and repeated fires were made. The second round of fires whether hit the deceased or not, was not seen by him. P.W-1 stated that he could not count the number of fires. The deceased was hit from a distance of about 4-5 paces, by the accused persons and as per his estimation, one pace is about half feet.

28. P.W-1 was further confronted as to how he could reach the spot at the same time when the deceased was going to his fields. He was also confronted whether the deceased was at his own house when he (P.W-1) had left his house. He stated that he (P.W-1) and the deceased both used to irrigate their fields from the same tubewell. On further confrontation, P.W-1 stated that about 10-50 villagers had reached the spot. They did not go to the Police Station.

29. About himself, P.W-1 stated that he stayed at the place of the incident for about half an hour, came home, changed his clothes and went to the Police Station by bus. They reached Fatehpur bus stand from the place of the incident and then went to the Police Station by bus. From the place of the incident he along with 3-4 cycle riders went to Fatehpur bus stand. There were 2-3 people along with them and 4-5 cycles. They all stayed at Fatehpur. P.W-1 was confronted about the way to the police station Thariaon Fatehpur and stated that it was through G.T Road and the police station was besides the G.T road. He further stated that they did not give any information in the Police Station Kotwali and straightaway went to the Police Station where they reached within half an hour, as they got private bus at the bus stand immediately. P.W-1 was further confronted about the existence of his an out-post Hasva of the Police Station Thariaon, near the Village. He stated that they stayed in the police station about half an hour and by 'they' he meant he, his nephew and his son, he did not remember others who were accompanying him.

30. P.W-1 further stated that they reached at their house at around 3.00 p.m and the police reached in the village at around 4.00 p.m and, thereafter, he went to the place of the incident along with the police. The inquest was completed at around 4.00 p.m and he accompanied the dead body. The police stayed at the place of the incident for around one hour.

31. On further confrontation, P.W-1 stated that he was in the village continuously for about 4-6 months after the incident but the police did not interrogate him. He was further confronted about the presence of accused Rajendra Nath Trivedi at the place of the incident and stated that he had categorically told the Investigating Officer that a person looking like Rajendra "tying Moraichha" was present but as to why that fact was not mentioned in his statement under Section 161 Cr.P.C., was not known to him. About the written report, P.W-1 categorically stated that it was scribed by informant Shailendra in the Village and had denied the suggestion that no such report was transcribed in his presence and he was making statement on deliberations. P.W-1 was further suggested that he had concocted the story of a person like Rajendra Nath having been present on the spot in his testimony, as he came to know that Rajendra Nath was already lodged in the District Jail, Raibareilly on the date of the incident. The suggestion that he had signed blank papers at the instance of the police was denied. The suggestion about criminal antecedents of the deceased Malkhan Singh was also refuted. The suggestion that deceased Malkhan Singh was killed by unknown miscreants because of his criminal activities was refuted by P.W-1. He was further confronted about the affidavits given by the witnesses Kuber Singh and Balram during investigation that the incident was caused by unknown persons. The suggestion that he was giving false statement being brother of the deceased was refuted by P.W-1.

32. P.W-2, Kuber Singh s/o Kartar Singh is a villager who stated that he was going Andauli to buy manure along with two other persons name as Balram and Durga Shankar and they were going on foot. Deceased Malkhan Singh was going ahead of them at a distance of 40-50 paces. They suddenly saw that five persons alighted from 'Arhar field' and started firing at deceased Malkhan Singh, who could run for about 2-3 paces and then he was gheraoed and killed by repeated fires on the spot. P.W-2 stated that he could identify the assailants and name them. He also identified accused persons namely Dinesh @ Lambri and Abhinesh present in the Court. He further stated that he could identify four accused persons, clearly but not the fifth one who was tying Safa. Abhinesh and Dinesh who were carrying Tamancha, Ashok (Country made pistol) rifle and there were guns in the hands of Anand and Rajendra. The place of the incident was near the field of Rajaram Singh where crops of 'Arhar' was standing. His statement was recorded by the Investigating Officer. Deshraj (P.W-1) and his son Jitendra also reached the spot. The deceased and accused were having old enmity.

33. P.W-2, in his examination in chief, further stated that the accused persons ran away collecting cartridge shells from the spot. In cross, P.W-2 stated that Deshraj Singh and brother-in-law of Shailendra were accompanying him on the date of the deposition and they were outside the Court. The suggestion was given to P.W-2 about enmity with accused persons on account of election dispute. It may be noted that P.W-2 was aged about 29 years on the date of deposition. He was around 21 years at the time of the incident. In cross, P.W-2 stated that he went to Delhi when he was barely 10-12 years old along with his uncle and came back when he was around 14-15 years old and since then he was residing in the Village Ramua Fatehpur. He was further confronted about criminal antecedents of the deceased, the cases lodged against the accused persons and the deceased. He was also confronted about the antecedents of informant Shailendra.

34. On confrontation about his presence on the spot, P.W-2 stated that his house was barely half a km South to the place of the incident and he had started from his house around 10-11 a.m. to get manure. He was further confronted as to whether he was carrying card to collect manure and answered that he was going to take it on the card of Durga who was present in his shop. About his statement under Section 161 Cr.P.C., P.W-2 stated that he had intimated the Investigating Officer about the time when he left his house, but why it was not mentioned therein, was not known to him. P.W-2 categorically stated, in cross, that the incident had occurred on the road away from the field of Rajaram, wherein crop of 'Arhar' was standing. The accused persons started firing at the deceased after reaching at the road at a distance of 2-3 paces from the field. All five accused persons had opened fires on the deceased Malkhan from the distance of 2-3 paces and he could not tell as to whether all fires or how many hit the deceased.

35. P.W-2 further, in cross, stated that as per his estimation, 1 km would be around 1½ feet. He was further confronted about the position in which the deceased was shot and fell down and the manner in which he was shot by all accused persons, P.W-2 stated that the first fire on the deceased Malkhan Singh was made from the West, while deceased was facing south, who fell on the ground towards South at a distance of 1-2 paces from the place of fire. The accused persons were towards North and they fired again. He further stated that those fires which were made from the North side were second round of fires and would have hit the deceased as he fell down, he, however, did not see those fires.

36. P.W-2 further stated that he ran towards his house while shouting and went again at the spot after 2-3 minutes. He remained on the spot till the dead body was lifted. He could not tell as to when the Police reached the spot. P.W-2 stated that he went to Fatehpur in the evening and by that time, the Police did not reach the spot, he then stated that he reached Fatehpur around 5.00 p.m and he did not accompany the dead body. P.W-2 was confronted about a previous incident of murder of some other person and that two police personnel were posted in the village who were having motorcycle. On further confrontation, P.W-2 stated that he went to the house of his Aunt at Fatehpur and stayed there for around 2-3 days and because of the fear, he did not come to the village. Police had investigated him in the Court after 5-6 days of the incident and he was not interrogated in the village.

37. P.W-2 was further confronted about the identity of the fifth assailant, who was mentioned as a person looking like accused Rajendra. He was also confronted about his own identity as Kuber s/o Kartar Singh. It was categorically stated by P.W-2 that his name was not Kunware Singh and he stated that he gave affidavit which was forcibly got signed on a plain paper. He was further confronted about the contents of the said affidavit. It may be noted, at this stage, that the said affidavit was filed in the Court by the defence. The contents of the affidavit were read over to P.W-2 who and he stated that it was got prepared under threat and coercion and he was threatened that he would be killed in the same way as deceased Malkhan Singh was killed. P.W-2 further stated that he did not file any report to any officer of the threat given to him. The suggestions that the place of the incident was wrongly narrated by him and he had not seen the incident nor he was present in the village, were refuted by P.W-2.

38. P.W-2 admitted that he was a distant relative of deceased Malkhan Singh and was acquainted with him. Lastly, the suggestion that he was making a false statement about the incident was categorically denied by P.W-2.

Arguments of the counsels:-

39. Placing the above evidence before us, it was argued by the learned counsel for the appellants that the first information report was ante time. To substantiate the same, it was urged that there is inconsistency in the distance of the place of the incident in the check FIR and inquest. Though in the check FIR, the distance of the place of the incident has been shown as '17 km' towards West, in the inquest, it was mentioned as 22 km towards West South. There are overwriting in the inquest and certain Sections have been added later. There is inconsistency in the time when the informant went to lodge the FIR. The time of lodging of the FIR as indicated in the inquest is 13.00 hours and as per the entries therein, inquest was completed by 15.45 hours (3.45 p.m), whereas P.W-1 Deshraj stated that he went to lodge the report along with informant Shailendra Pratap Singh, and the police had reached the spot at around 4.00 p.m and the inquest was conducted by 4.30 p.m.

40. It was argued that P.W-1, who had proved the factum of lodging of the written report by informant Shailendra Pratap Singh, stated that they did not go to the police station straightaway from the place of the incident. After the incident they stayed at the place of occurrence for about half an hour, and then went to the police station. by a bus which they catched from Fatehpur Bus stand. From the place of the incident to the Fatehpur Bus stand they reached by bi-cycles. It took them around 3-4 hours to reach at the Police Station Thariaon from the place of the incident, which according to P.W-1 was around 20-22 kms. They stayed at the police station for about half and hour and then came back to Fatehpur by tempo wherefrom they reached at the place of the incident by bicycle. P.W-1 stated that they reached back to their house at about 3.00 p.m and the police did not reach the spot. The police came around 4.00 p.m and then he went to the spot of the incident along with the police where they stayed for around one hour and inquest was conducted and completed by 4.30 p.m. The dead body was then sent for post mortem through tractor, P.W-1 accompanied the dead body.

41. This part of the statement of P.W-1 has been placed before us along with the statement of P.W-2, where he stated that after the incident, he ran to his home and again reached at the spot after 2-3 minutes, the body was not taken away by then and he stayed on the spot. P.W-2 though did not state the time when the police reached on the spot of the occurrence but stated that he went to Fatehpur in the evening at around 5.00 p.m and by that time, police did not reach at the spot.

42. The statement of P.W-6, the Investigating Officer, in cross, has also been placed before us wherein he stated that he reached at the place of the incident at about 12.30 p.m., stayed there for 2-3 hours, dead body was sent for the post mortem in his presence. About the distance of the place of the incident from the police station, P.W-6, in cross, stated that the place of the incident from the police station is 17 kms. It was further pointed out that P.W-6 the first Investigating Officer, on confrontation, admitted that the FIR was not registered in his presence as by the time he reached at the place of the incident.

43. P.W-3, the check writer also stated that the Investigating Officer M.P. Verma (P.W-6) was not present in the police station when the first information report was lodged and that was the reason why his signatures could not be found on the Check report Exhibit 'Ka-2'. On a suggestion given to P.W-3 that FIR was ante time and it was not registered till 22.11.1997, i.e on the date of the incident and the GD was not prepared on the said date, he admitted that the intimation of the FIR to Senior officials as per the mandate of Section 157 Cr.P.C was sent on the next date, i.e 23.11.1997. On further confrontation, he admitted that he could not bring the Dakbahi to substantiate the antetime of sending of the FIR to senior officials on 23.11.997, on the next date of the incident.

44. The statement of P.W-5, S.I Manindra Kumar Singh, in the examination in chief, has been placed before us to point out that P.W-5 stated that he left for the place of the incident after registration of the case along with S.O M.P. Verma. The suggestion was given to P.W-5 about insertion/overwriting in the inquest and he admitted that Section 147 IPC was added by making overwriting in the inquest wherein signature of the concerned officer did not exist.

45. The statement of P.W-2, in cross, has further been placed before us to assert that on confrontation he admitted that two police personnel were posted in the village because of the murder of one Chandrabhan occurred around 8 days prior to the incident.

46. By placing the above evidence, it was vehemently argued by the learned counsel for the appellants that the witnesses are lying on the material particulars particularly as to when the written report was received at the police station, how information had reached to the Station House Officer and when the police had reached on the spot. The distance of the police station from the place of occurrence is inconsistent. There are overwriting and cutting in the inquest. There is a delay in dispatch of the FIR and the time of the incident in the police papers is not mentioned. It was argued that cumulative effect of the above discrepancies categorically proved that the first information report was not in existence when the inquest was conducted by the police on the spot. As there was no clarity of the Sections under which the FIR was lodged, Section 147 was later added in the inquest which had resulted in overwriting in the said document. The witnesses are very casual in making statement about lodging of the FIR in time i.e, at the time which is indicated in the Check report. It was argued that the statement of P.W-1 that he reached at his house from the place of the incident after occurrence, changed his clothes and then went to the police station, coupled with the fact that the witnesses took a longer route to reach at the Police Station Thariaon is evidence of the fact that the witnesses are trying to fill in the gaps and they were not sure of the time when the FIR was lodged.

47. Even the formal witnesses, namely the Check writer, the Investigating Officer, and the officer who prepared the inquest are making inconsistent statements about the presence of the Investigating officer at the time of lodging of the FIR. In his examination in chief, the statement of P.W-6 that after receiving investigation he had copied G.D in the case diary and then recorded the statement of informant Shailendra Pratap Singh on the spot coupled with his statement, in cross, that the FIR was not lodged in his presence as he reached at the spot by that time, is proof of the fact of the FIR having been lodged after conducting inquest. It is evident that the FIR was not lodged at the time which is indicated in the Check report or the inquest. As the time of lodging of the FIR as indicated in the Check report, could not be proved by the prosecution, it establishes that the implication of the appellants was a result of deliberation of the informant and the persons projected as witnesses with the police. There is an admission of old enmity of the accused persons with the deceased, false implication of the appellants, therefore, cannot be ruled out. The time, distance and the manner in which the written report was lodged, had been shifted by the prosecution witnesses in their testimony. The inconsistencies in their statement, in that regard, as noted above are proof of the fact of the FIR being ante time. The result is that the entire prosecution case stands demolished since the beginning.

48. It was next argued that the witnesses are not reliable. P.W-1 has been produced as an eye witness being brother of the deceased. He was not the scribe of the FIR. His conduct in the entire episode from the narration of the incident by him shows that he had animus with the appellants and entered in the witness box with hostility against the appellants. This witness is so hostile that the serious grudge against the appellants, in his testimony, is reflected from the fact that while proving the written report as Exhibit Ka-1, he not only intimated the Court that the informant had been murdered but implicated the appellants being culprits in the said murder. Further, in his examination in chief, P.W-1 had falsely implicated one person namely Rajendra Nath Trivedi as accused and made an inconsistent statement that a person looking like Rajendra Nath Trivedi who was tying Moraichha, alighted from the field of Rajaram Singh. While saying so, P.W-1 tried to clarify that the said person was looking like Rajendra Nath Trivedi but he was some other person. This statement, in the examination in chief, had been made by P.W-1 just to clarify the statement in the written report of the informant, about the presence of Rajendra Nath Trivedi when it came into his knowledge after lodging of the FIR that Rajendra Nath Trivedi was already lodged in jail on the date of the incident. The way P.W-1 tried to twist the entire story written in the report, which was scribed in his presence as per his own testimony, it is evident that it was a case of false implication of appellants because of the previous enmity of the accused persons with deceased Malkhan Singh and his family. It was reiterated that the involvement of Police in false implication of the appellants cannot be ruled out. In cross, P.W-1 admitted the incident of enmity of deceased Malkhan Singh with the appellants and that he was also a witness in a case lodged by deceased Malkhan Singh against the accused persons under Section 307 IPC in the year 1984.

49. In cross, P.W-2 was confronted about the misdeeds of deceased Malkhan Singh that he made an attempt to murder one Munnu prior to the incident and that deceased Malkhan Singh used to threaten villagers and was associated with a Dacoit Sahdev. Many criminal cases were lodged against Malkhan. P.W-1 could not confront those suggestions successfully. It was argued that these facts proved that deceased Malkhan Singh was murdered by unknown persons because of his criminal activities and no one had seen the incident. It was argued that P.W-1 also could not confront this suggestion of the defence successfully.

50. It was urged that no independent witness had been produced. P.W-1, in his cross examination, on 28.11.2005, at the beginning stated that two eyewitnesses namely Kuber Singh and Balram were present in the Court on the said date but one witness Durga Shankar did not come on that day and stated that he would produce Durga Shankar in the witness box. However, no explanation is forthcoming for non-production of the said witness by the prosecution. The contention is that the best evidence of independent witnesses available to the prosecution had been deliberately withheld. The reliability of P.W-1 as a witness because of the false implication and deep seated enmity of the prosecution witnesses and the deceased with the appellants, becomes highly doubtful.

51. With regard to another eye witness P.W-2, it is vehemently contended by the learned counsel for the appellants that his identity is also in dispute. P.W-6, the first Investigating Officer, M.P. Verma was confronted on the said issue and he admitted that he recorded statement of Kunware Singh on 08.12.1997, who projected himself as an eye witness. About the delay in recording the statement of Kunware Singh, P.W-6 stated that this witness did not meet him prior to 08.12.1997. P.W-6 was further confronted about the entries in parcha nos.II and III dated 23.11.1997 and 24.11.1997 and admitted that the name of Kunware Singh had not been mentioned therein as a witness. In the written report, the name of this witness had been mentioned as Kuber Singh s/o Kartar Singh. P.W-2, Kuber Singh s/o Kartar Singh who had entered in the witness box when confronted, categorically stated that his name was not Kunware Singh. From the testimony of P.W-6 that he recorded statement of Kunware Singh on 08.12.1997 and the statement of P.W-2 Kuber Singh s/o Kartar Singh, it was pointed out by the learned counsel for the appellants that the person who was examined as P.W-2 was not an eyewitness. The prosecution had produced witness who was not interrogated during the investigation. The statement of P.W-2 that he was present at the time of the incident cannot be relied for the simple fact that his name was mentioned in the written report submitted by informant Shailendra Pratap Singh. This lacuna is sought to be filled by the subsequent Investigating Officer of CBCID namely P.W-7 who stated in his examination in chief that he recorded statement of Kuber Singh @ Kunware Singh as eye witness of the incident and Kuber Singh was also called as Kunware Singh. This identity of P.W-2 as Kuber Singh as Kunware Singh is highly doubtful from the inconsistencies in the statements of P.W-2, P.W-6 and P.W-7 noted hereinabove.

52. It was further argued that the conduct of this witness namely P.W-2, makes his presence on the spot becomes doubtful. This witness though claimed to have seen the incident but he ran away from the spot. The statement of P.W-2 that he reached the spot again after 2-3 minutes and stayed there till the body was taken away for the post mortem is not be believable from his further deposition that he did not know as to when the police reached the spot. On the one hand, this witness stated that he went to Fatehpur in the evening and reached there by 5.00 p.m but, on the other hand, he stated that he stayed on the spot till the body was lifted. From the statement of P.W-1, it is evident that the post mortem was conducted at around 4.30 p.m. It was, therefore, impossible for this witness namely P.W-2 to have reached Fatehpur at 5.00 p.m, had he stayed till completion of the inquest. Moreover, this witness had not been examined as inquest witness and further there is an unexplained delay in recording the statement of P.W-2 by the first Investigating Officer. P.W-2 further admitted that he gave an affidavit dated 25.03.1998 to the Investigating Officer, stating therein that he was not present on the spot. The contents of the affidavit had been read out to P.W-2 during his cross examination, but no plausible explanation had been given by this witness about his stand therein that he was wrongly projected as eyewitness. Further, the conduct of P.W-2 in running away, hiding and avoiding the investigation for a long time and later filing affidavit denying his presence on the spot, is a clear proof that he was not present on the spot. Moreover, this witness was distantly related to deceased Malkhan Singh and this fact was admitted by him when confronted.

53. It was argued that considering the deposition of this witness in totality, it is evident that he was planted by the prosecution in order to give strength to the testimony of P.W-1.

54. It was, thus, argued by the learned counsel for the appellants that for the delay in recording statements of witness projected as eyewitness, under Section 161 Cr.P.C and the material improvement in their deposition before the Court, it is more than evident that the present is a case of false implication of the appellants. The prosecution story is highly doubtful and the benefit, thus, has to be given to the appellants.

55. It was further argued that the examination of appellants Dinesh Kumar @ Lambri and Abhinesh under Section 313 Cr.P.C is perfunctory. The circumstances which had not been put to the accused persons during their examination under Section 313 Cr.P.C cannot be read against them. They are to be excluded from consideration.

56. Reliance has been placed on the decision of the Apex court in Sharad Birdhi Chand Sarda vs State Of Maharashtra reported in 1984 AIR 1622 to substantiate the said submission.

57. Reference has been made to the judgment of the Apex Court in Dharnidhar vs State of Uttar Pradesh and other reported in (2010) 7 SCC 759 to argue that the proper methodology to record the statement of the accused under Section 313 Cr.P.C is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged to invite his explanation. The purpose of Section 313 Cr.P.C is to provide an opportunity to an accused before the Court as to what is truth and what is defence in accordance with law. The Court has to give opportunity to the accused to elicit an explanation from him, which may be free from fear of being trapped for an embarrassing admission or statement. All circumstances bearing against the accused, thus, are to be put to him clearly.

58. The question no.1 and question no.2 put to both the appellants accused herein have been placed before us to assert that the said questions have been framed in a generic manner and it was not put to the appellants accused that the evidence led by the prosecution was against them. While narrating the contents of the written report Exhibit Ka-1, the allegations of involvement of appellants therein had not been clearly put as the appellants were referred as "accused persons":

"आप अभियुक्त गढ़"

59. Similarly, in question no.2 generic statement of the accused persons (mulziman) having escaped the place of incident had been put as the circumstances of presence of appellants Dinesh Kumar @ Lambri and Abhinesh had not been put to them. The denial to the said circumstances on their part cannot be considered against them so as to treat their answer as evasive or false explanation to the said circumstance. It was argued that the manner in which the incriminating circumstances were put to the accused persons clearly shows that they were not provided adequate opportunity to explain. This has to be treated as lacuna in the prosecution case and benefit has to go to the appellants.

60. Learned AGA refuted the said submission and vehemently argued that there is no substance in the submission of the learned counsel for the appellants about the FIR being ante time.

61. The time of lodging of the FIR cannot be doubted for the fact that the informant and eye witness P.W-1 did not go to the Police Station Kotwali and travelled distance of about 17 kms to go to the Police Station Thariaon to lodge the FIR. From the statement of P.W-1, it is clear that they had in mind that the jurisdiction about investigation was with the Police Station Thariaon and, as such, there was no question to go to the Police Station Kotwali as FIR could not have been lodged therein. P.W-1 had also explained as to how they went to the police station. The informant Shailendra Pratap Singh was barely 17 years old at the time of murder of his father Malkhan Singh, it was natural for P.W-1, Deshraj Singh, who was the uncle of the informant, being brother of the deceased, to accompany the informant to lodge the FIR. P.W-6, the first Investigating Officer clearly proved, in his deposition, that he was not present in the police station when FIR was lodged and he recorded the statement of informant Shailendra Pratap Singh @ Babloo on the spot of the incident. P.W-6 on confrontation categorically stated that by the time FIR was lodged, he had reached the spot and the report was not lodged in his presence. This fact is also proved from the statement of P.W-3 who stated that the Station House Officer M.P. Verma (P.W-6) had left Police station before the check report was prepared.

62. The presence of eyewitness has been shown in the site plan wherein the name of Kunware Singh as eye witness has been mentioned at places shown as E, F, N, G. The presence of the informant has been shown therein at place 'B' whereas presence of Deshraj and Jitendra Pratap Singh has been mentioned at the places marked by letters 'C' and 'D'. All the eye witnesses of the incident namely informant, P.W-1 and P.W-2 were present at different places. The place of the incident had been proved from the recovery which could not be confronted by the learned counsel for the appellants. The FSL report proved the evidence collected from the place of incident and recoveries against the accused persons. As regards the inconsistencies in the statement of eyewitness and the implication of one of the assailants as Rajendra Nath, it was argued by the learned AGA that by the mere statement of P.W-1 that the fifth man amongst the assailant looked like Rajendra Nath would not demolish his entire deposition. It has to be considered by the Court that the deposition of this witness was recorded after 10 years of the incident. The suggestion put to P.W-1 that some unknown assailants had killed the deceased was categorically refuted by him. Accused Rajendra Nath named in the written report was not identified by this witness nor his presence was proved. The date and time of the first information report and the contents thereof had been proved by P.W-1 in his deposition in the Court.

63. Looking to the deposition of P.W-1 as a whole, his credibility cannot be shaken as no material improvements or inconsistencies could be found. As regards P.W-2, it was argued that P.W-2 categorically stated that his house was barely half a km from the place of the incident. The assailants had opened fires after they walked around 2-3 paces road after coming out of the Arhar field. One pace, according to P.W-2, is 1½ feet. The distance wherefrom the assailants had opened fires on the deceased was stated to be 2-3 paces. The manner in which the assailants had killed the deceased, narrated by P.W-1 and P.W-2, is proved from the injuries found on his person. The pellets had been recovered from all the injuries of the deceased. The distance wherefrom such injuries could have been caused, had been put to the post mortem doctor who had clearly explained the same. There were three types of weapons used by five assailants, as has come in the statement of eyewitnesses, which were double barrel gun, 315 bore and 12 bore country made weapons. The Investigating Officer in the site plan had noted that the witnesses had told him that the deceased was killed from a distance of 2-3 paces to 6-7 paces. The blackening was found on some of the injuries.

64. Four assailants were well identified by the witnesses and the identity of one was doubtful. In these circumstances, it cannot be said that the prosecution has failed to establish the involvement of the appellants beyond reasonable doubt. There was no reason for false implication of the appellants. P.W-2 Kuber Singh was an independent witness. The informant of the incident namely Shailendra Pratap Singh had been killed before the evidence commenced in this case. The factum of lodging of the FIR and the contents of the written report had been proved by P.W-1 Deshraj who had accompanied the informant to the police station. It was a day light murder, motive to commit the crime had been proved by the prosecution. The first information report was a prompt report. The murder weapons had been recovered. The post mortem report and oral testimony are in sync. The identity of P.W-2 Kuber @ Kunware Singh cannot be doubted in view of the clarification given by P.W-7, the Investigating Officer of CBCID. The factum of the affidavit having been filed by the P.W-2 Kuber Singh and his statement that the said affidavit was filed by him under pressure and threat of the accused persons, further established his presence on the spot. As regards the fifth man stated to be looking alike Rajendra Nath, it was argued that Rajendra Nath, father of the appellants Dinesh @ Lambri and Abhinesh had been lodged in jail only two days before the incident in an Excise duty case he had enmity with the deceased. The confusion occurred in the mind of Deshraj Singh, brother of the deceased, examined as P.W-1 that fifth man looked like Rajendra Nath could not demolish the prosecution case.

65. The submission, thus, is that the prosecution had proved its case beyond all reasonable doubts and there cannot be any doubt about the occurrence of the incident at the place established by the prosecution and the involvement of the accused persons. The appeal is liable to be dismissed being devoid of merits.

Analysis

66. Heard learned counsel for the parties and perused the record.

Antetime FIR:-

67. Dealing with the first contention of the learned counsel for the appellants of the FIR being antetime on the grounds noted above, it is pertinent to note, at the outset, that in the instant case, the incident of murder had occurred on 22.11.1997. The statement of the prosecution witness beginning from P.W-1 had commenced on 21.11.2005. In the meantime, the informant of the incident had also been murdered. The inconsistencies pointed out in the statement of P.W-1 about the time when the police had reached the spot and the inquest was conducted may occur because of the fading memory.

68. P.W-1 Deshraj Singh categorically narrated the date and time of the incident in his examination in chief. He stated that while deceased Malkhan Singh was going to the field along with his son Shailendra Pratap Singh @ Babloo, he (P.W-1) and his son Jitendra Pratap were coming back to the village after putting off their tubewell. The narration of the incident, the manner in which the murder was committed had been categorically made by this witness. On further confrontation about his presence, P.W-1 categorically stated that he went to his field along with his son around 7.00 a.m. to water it by the tubewell. He stayed there and his younger son brought food for them. The tubewell as came in the testimony of P.W-1 was at a short distance from his house, as it took him around 5-10 minutes to reach there. P.W-1 further stated that as a matter of daily routine he used to go to his tubewell after morning tea and come back around 10-11 a.m. About the time taken in reaching the police station, P.W-1 stated that after the incident, they stayed at the place of occurrence for about ½ hours. The time of occurrence of the incident as indicated in the written report/check report is 11.00 a.m. He then came back his home, changed his clothes and immediately left for the police station. The Police Station-Thariaon had the jurisdiction over the place of the incident and, therefore, no exception can be taken to the decision of the informant and P.W-1, the family members of the deceased to go to the Police Station Thariaon which was at a distance of 17 kms from the place of the incident. The manner in which P.W-1 and the informant had reached the police station could not be confronted by the defence. The report as indicated in the Check FIR was lodged at 13.00 hours (1.00 p.m). P.W-1 stated that they stayed in the police station for about half hour and, thereafter, came back to the village where they reached around 3.00 p.m. The inquest of the dead body had commenced at 14.45 hours (2.45 p.m) and completed at around 15.45 hours (3.45 p.m). The statement of P.W-1 that the police came to the village around 4.00 p.m is only estimation of this witness. He had not been confronted on the issue as to whether the time stated by him was by looking to the watch. The statement of P.W-1 that the police had reached the village around 4.00 itself is proof of the fact, the time was not fixed by him. Further, the statement of P.W-1 that inquest was completed by 4.30 p.m is to be looked, accordingly. P.W-6, the first Investigating Officer categorically stated that he reached the spot of the incident at about 12.30 p.m and stayed there for 2-3 hours. The inquest was conducted in his presence and the body was then sent for the post mortem.

69. P.W-5 Manindra Kumar Singh proved the inquest and that the entries therein had been made in his handwriting. This witness though had been confronted about overwriting and cutting in the Sections (of the offence) mentioned in the inquest but no question had been put to him with regard to the alleged discrepancy in the inquest about the distance of the place of the incident from the police station. P.W-6, the Investigating Officer categorically stated that the Police Station Thariaon was at a distance of approximately 17 kms from the place of the incident and via Fatehpur it would be around 30 kms. P.W-3 Constable Moharrir Shyam Narayan Singh had proved that the written report was brought by informant Shailendra Pratap Singh at 13.00 hours (1.00 p.m), G.D entry of the report had been proved by him.

70. With regard to the original G.D., it was categorically stated by P.W-3 that it was submitted in the Police Head office and weeded out after five years. The factum of sending the Check FIR to the office of the Circle Officer had been proved by P.W-3. He stated, in cross, that the Check report was first sent to the office of Circle Officer and from there it was sent to the concerned Court. He further stated that report must have been sent on the next date, i.e 23.11.1997 in the morning, but the entries in that regard could not be brought before the Court due to considerable a lapse of long time. P.W-2 also proved the date and time of the incident and stated that when deceased Malkhan Singh was attacked, he ran towards his house while crying and though went again to the spot but left for Fatehpur where he had reached around 5.00 p.m.

71. From the above statement of the witnesses, the inconsistencies pointed out by the learned counsel for the appellants could not be substantiated with regard to the manner and time of lodging of the FIR, the discrepancies pointed out by the learned counsel for the appellants are found to be minor and nor of material dimension. It is settled law that the High Court being the first appellate Court may reappraise the evidence, but the discrepancies found in the ocular account of two witnesses, unless they are so vital as to demolish the case of the prosecution, cannot be given undue weightage.

72. It was observed by the Apex Court in Leela Ram (D) Through Duli Chand vs State Of Haryana And Anr while laying principles of appreciation of evidence of eyewitnesses that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be excepted in criminal cases. When an eyewitness is examined at length, it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witnesses who is well tutored can successfully make his testimony totally non discrepant. The Court should bear in mind that it is only when discrepancies in the evidence of the witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. Reference may also be made to State of Rajasthan vs Kishore reported in (1996) 8 SCC 217 and Rammi alias Rameshwar vs State of M.P reported in (1999) 8 SCC 649; Appabhai and other vs State of Gujarat reported in 1988 (Supp) SCC 241 noted therein.

73. From the above discussion, the discrepancy in the time narrated by P.W-1, the witnesses who had accompanied the informant to the police station, are not such which would shake the basic version of the prosecution about the lodging of the FIR. For the time stated by P.W-1 about conduct of inquest, it cannot be said that all the other witnesses who had proved the report and the documents on record were lying. The first ground of attack of the FIR being ante time could not be substantiated from the circumstances brought before us.

74. About the delay in sending the first information report, i.e non-compliance of Section 157 Cr.P.C, suffice it to note that the mere delay in sending the FIR to Senior officials would not be sufficient to hold that the FIR was ante time. It was a day light incident and there is no reason for the Court to assume that the witnesses would not have gone to the Police Station which was 17 kms from the place of incident, to lodge the FIR. The time of two hours taken by the witnesses to reach the Police Station to lodge the FIR, had been well explained by them.

75. Learned counsel for the appellants vehemently argued that from the discrepancy in the statements of the Investigating Officer P.W-6, the check writer, P.W-3 and the inquest writer P.W-5, it is evident that till the time the inquest was conducted, the first information report was not lodged at the P.S Thariaon. There is a serious doubt about the presence of S.O Sri M.P. Verma in the police station at the time of lodging of the FIR. This is one of the important factors which weigh in support of the contention of the defence of the FIR being ante time.

76. Dealing with the said submission, suffice it to note that P.W-6, S.O, Police Station Thariaon when confronted, categorically stated that the case was not registered in his presence as by that time he had gone on the spot. The Check writer, P.W-3 also stated categorically that S.O. M.P. Verma had left the police station before the Check report was prepared.

77. A perusal of the case diary at Parch no.1 dated 22.11.1997 indicates that the entries in the G.D no.24 at 13.00 hours were made with regard to the lodging of the FIR. It is noted therein that informant Shailendra Pratap Singh @ Babloo s/o Malkhan Singh alongwith his uncle Sri Deshraj Singh S/o Devi Dayal Singh, resident of Village Ramua, came to the Police Station and filed a written report under his signature reporting the incident. The Check no.161/97 with Case Crime no.302/97 under Sections 147/148/149/302 IPC was registered on the said report. It is also noted therein that S.O was present on the spot of the incident at Village Ramva before those entries were made. P.W-3 Check writer proved the preparation of Check FIR and G.D entry no.24 dated 22.11.1997, being in his handwriting. The entry with regard to the S.O. Sri M.P. Verma having left the police station before the first information report was lodged, is further substantiated from the noting in the case diary at Parcha no.1, wherein the factum of receipt of paper of investigation by S.O M.P. Verma had been noted.

78. It is noted in the Case diary at Parcha no.2 that S.O M.P. Verma had reached village Ramva on getting the information of assault on RT set. The papers pertaining to the registration of FIR and related investigation papers etc had been received by S.O. M.P Verma (P.W-6) on the spot. It is also noted in the G.D that Check FIR and G.D rapat no.24 were copied in the Case diary by P.W-6 S.O M.P. Verma, before proceeding with the investigation, on the spot.

79. In view of the above, the submissions of the appellants on the FIR being ante time, pointing inconsistencies in the statements of P.W-3, P.W-5 and P.W-6, the police witnesses, are found without any substance.

Reliability of the eyewitness-P.W-1 Deshraj Singh:-

80. About the reliability of P.W-1, an eyewitness, about his conduct in not making an effort to save his brother, deceased Malkhan Singh, suffice it to note that there were five assailants who all were carrying fire arms, the assailants had enmity with the deceased, it was natural for P.W-1 not to come forward having fear of being killed.

81. About the implication of accused Rajendra Nath, father of the appellants in the incident, from the statement of P.W-1, it can be seen that he had categorically stated that there were five assailants amongst whom one, according to him looked like Rajendra Nath Trivedi but he was actually not the same person. The first information report which was lodged by Shailendra Pratap Singh was scribed in the presence of P.W-1 and the name of Rajendra Nath as one of the assailants had been mentioned therein with the description of the weapon in his hand.

82. From this part of the testimony of P.W-1 and the contents of the FIR, it can be said that implication of accused Rajendra Nath Trivedi in the incident was false. It could be also be because of the confusion in the minds of the witnesses about the identity of the fifth person who was accompanying the appellants. It may be because of Rajendra Nath being father of the appellants herein and having enmity with deceased Malkhan Singh. It has come on record that deceased Malkhan Singh had lodged criminal case under Section 307 IPC against Rajendra Nath who was later convicted in the said case.

83. However, merely by implication of Rajendra Nath as one of the assailants, it cannot be assumed that this witness (P.W-1) made false statement on every other details of the occurrence.

84. It may be noted that principle of falsus in uno falsus in omnibus as observed in Sohrab and another vs State of Madhya Pradesh reported in AIR 1972 SC 2020 has no application in India. For falsity of particular material witness or material particular in his testimony, the entire prosecution evidence would not ruin from beginning to the end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. It is only a rule of caution. It does not have the status of rule of law. It is merely a rule of caution. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'.

85. In Balaka Singh & Ors vs State Of Punjab reported in (1975) 4 SCC 511, the Apex Court has held that where it is not feasible to separate truth from falsehood, because the grain and shaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and background against which they are made, the Court cannot make an attempt to separate truth from falsehood. However, in Nasar vs State of U.P reported in AIR 1957 SC 366 while elaborating the aforesaid principle, it was held that all it amounts to is that in such cases, the testimony "may be disregarded" and not that "it must be disregarded".

86. In light of the above principle, by the mere fact that there was some confusion in the mind of the witness (P.W-1) about the identity of fifth assailant looking like Rajendra Nath or he was falsely implicated no knowing that he was in jail on the date of the incident, it cannot be said that this witness (P.W-1) is lying on all material details. The testimony of P.W-1, as a whole, cannot be discarded for this fact.

87. Lastly, about the claim of false implication of the accused persons at the hands of P.W-1 because of the previous enmity, suffice it to note that enmity is a double edged sword. It may be a reason of false implication of the accused persons, but it may also be a cause of committing offence. The motive is proved which is evidence of the evil intent and is also relevant to show that the person who had the motive to commit the crime actually committed it, although such evidence alone would not ordinarily be sufficient. If the motive is proved or established it forced the key or question to scan the evidence in a case in that perspective. By the mere proof of animosity between the deceased or the witnesses with the accused persons, it is not possible for the Court to find out the motive of false implication of accused persons as it may be a reason for commission of the crime. As noted in Shankarlal Gyarasilal Dixit vs State of Maharashtra reported in (1981) 2 SCC 35, suffice it to say that motive operates in the minds of different persons.

88. On the allegation of false implication of accused persons, or on account of false implication of one of them as assailants, it cannot be said that it was a case of false implication of all the accused persons at the hands of P.W-1, the eye witness. The suggestion given to P.W-1 that some unknown persons had committed the crime stands refuted from the prompt FIR indicating the names of the accused persons therein.

89. For the mere fact that P.W-1 was related to the deceased being his brother and he had mentioned in his deposition that even his nephew, the informant of the present case, had been killed by the accused-appellants, it cannot be assumed that it was a case of false implication of the accused persons at the hands of P.W-1.

90. It may be profitable to note that in Kartik Malhar vs State of Bihar reported in (1996) 1 SCC 614, the Apex Court has said that a close relative who is a natural witness cannot be regarded as an interested witness. In Jayabalan vs Union Territory of Pondicherry reported in (2010) 1 SCC 199, it has been observed that the Court must be cautious in appreciating and accepting the evidence given by the interested witness but the Court must not be suspicious of such evidence. The primary endeavour of the Court must have to look for consistency. The evidence of witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. The law relating to appreciation of evidence of an interested witness is well settled according to which the version of interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same.

91. The presence of P.W-1 on the spot of the incident seems to be natural, as is evident from the site plan the field of deceased Malkhan Singh was on the other side of the road where the murder took place. The appellants, as per the statement of P.W-1, were hiding in the field of Rajaram Singh which was on the other side of the road. P.W-1 stated that the field of deceased Malkhan Singh was being irrigated from his tubewell. The presence of this witness (P.W-1) alongwith his son Jitendra Pratap Singh had been shown at place 'C' and 'D' in the site plan, which is on the road heading towards the Village Ramva. P.W-1 stated that after closing of his tubewell he along with his son was going towards village when they witness the incident. P.W-1 stated that he had sown crop in his field and used to go in the morning to irrigate it, which cannot be doubted to discard the presence of P.W-1 on the spot. The testimony of P.W-1, thus, cannot be said to suffer from any discrepancy.

Identity of eyewitness P.W-2-Kuber Singh:-

92. The second eye witness of the incident Kuber Singh @ Kartar Singh, examined as P.W-2, was a resident of Village. He had categorically stated that he had no enmity with the accused persons nor he was directly related to the deceased or his family. Though this witness had been confronted about his independence but no contradiction to this stand could be brought before us.

93. In cross examination of this witness, the contents of his affidavit dated 25.03.1998 given to the Superintendent of Police CBCID Division Allahabad, Lucknow were put to him and in reply, he categorically stated that the said affidavit was prepared by taking his signature on plain papers under threat and coercion. He was threatened that he would also be killed in the manner deceased Malkhan Singh had been killed. The presence of this witness on the spot is proved to be natural his house being barely half a km South to the place of incident. This witness stated that he left his house at around 10-11 a.m and he was going to get the manure along with one Durga and while they were going on foot and Malkhan Singh was in front of them, the accused persons alighted from the field of Arhar and started firing at Malkhan Singh. This witness alongwith other two villagers had been shown to be present at the place marked by letters 'G', 'E', 'F' in the site plan. P.W-2 categorically stated that on their shouting the accused persons ran towards South. The place of the incident was outside the field of Rajaram wherein Arhar was sown. P.W-2 also confirmed the presence of P.W-1 Deshraj and his son Jitendra. After the incident, he ran to his house while shouting and, thereafter, went to Fatehpur in the evening.

94. In this part of the testimony of P.W-2, his presence, on the spot, cannot be doubted. The suggestion was given to P.W-2 that his acquaintance Jairaj Singh resident of the Village, had contested an election of the society. D.W-1 had also been produced in the witness box to assert that against appellant Abhinesh the election for the post of Sanchalak of Kisan Seva Sahkari Samiti was contested by appellants Abhinesh and one Jairaj Singh and Abhinesh s/o Rajendra Nath Trivedi won the election.

95. Taking aid of the said suggestion of the defence, it was sought to be submitted by the learned counsel for the appellants that the appellants had been illegally implicated because of enmity of Jairaj Singh with appellant Abhinesh and P.W-2 had been set up as an eye witness at the instance of Jairaj Singh.

96. There is no substance in the said submission of the learned counsel for the appellants, inasmuch as, no enmity of any other accused persons with this witness P.W-2 could be suggested. P.W-2 categorically stated that he knew all the accused persons and out of five assailants, who opened fires upon the deceased Malkhan Singh, four were clearly identified by him. There was a doubt about the identity of fifth assailant who was mentioned as Rajendra Nath by this witness. It is stated by P.W-2 that he could not identify Rajendra Nath, the fifth assailants correctly as he was wearing Safa. The inconsistency in the identity of fifth assailants Rajendra Nath tying 'Moraichha' as stated by P.W-1 and tying 'Safa' as stated by P.W-2, is sought to be pressed into service to assert that P.W-2 was also planted by P.W-1, brother of the deceased. This submission is also found without any substance for the reasons of doubt about the identity of fifth assailant on the part of the prosecution witnesses, as noted above. It may be added that the names of five assailants were clearly stated in the first information report. There was no reason for P.W-2 to falsely implicate appellants Dinesh @ Lambri and Abhinesh, as there is no evidence of enmity of P.W-2 with any of the accused persons.

97. Lastly, about the identity of P.W-2 being Kuber Singh s/o Kartar Singh or Kunware Singh s/o Kartar Singh, having noted the contentions of the learned counsel for the appellants, it may further be recorded that the name of P.W-2 Kuber Singh s/o Kartar Singh has been categorically mentioned in the written report with the statement that he had reached the spot along with Durga Shankar s/o Ramnath and Balram s/o Chhatrapal. There is no inconsistency about this statement in the FIR and the deposition of P.W-1 and P.W-2. Both the witnesses are consistent about their presence on the spot. P.W-6, Investigating Officer on confrontation about the identity of P.W-2 stated that he had recorded statement of Kunware Singh on 08.12.1997, who projected himself as an eyewitness and he did not record the statement of Kuber Singh. This statement of P.W-6 is sought to be pressed before us to assert that the Investigating Officer categorically stated that he did not record the statement of Kuber Singh. The prosecution has, however, produced Kuber Singh in the witness box. It is argued that from the above evidence, it is clear that Kuber Singh s/o Kartar Singh was later introduced by the prosecution with an idea to attach strength to the testimony of P.W-1 whose statement was inconsistent.

98. While considering this argument, we may note that the factum of Kuber Singh and Kunware Singh being one person had been proved by P.W-7, the Investigating Officer of CBCID, when he categorically stated in cross that Kuber Singh @ Kunware Singh was eyewitness of the incident whose statement was recorded by him after receipt of the investigation. Kuber Singh was also known as Kunware Singh. This fact is also evident from a perusal of the case diary wherein in Parcha no.1, at various places, the name of eyewitness Kuber Singh s/o Kartar Singh has been mentioned. However, in Parcha VII dated 08.12.1997, while recording statement of the eyewitness, his name has been mentioned as Kunware Singh s/o Kartar Singh. In parcha no.VIII dated 13.12.1997 the statement of another witnesses Balram has been recorded. In his statement, it has come that he along with Durga Shankar and Kunware @ Kuber Singh was sitting at his shop at around 9.30-10.00 a.m on the date of incident and then Durga Shankar told to go to get manure and while they were going on the road towards Kandhauli, the incident had occurred.

99. From a perusal of the case diary and the statement of the Investigating Officer of CBCID namely P.W-7, there remains no doubt about the identity of P.W-2 Kuber Singh s/o Kartar Singh being eyewitness as mentioned in the FIR. The statement of P.W-2, in cross, that his name was not Kunware Singh is of no relevance, inasmuch as, Kunware Singh was only popular name of this witness who is actually Kuber Singh s/o Kartar Singh. There is no evidence of the defence that there were two persons in the Village in the name of Kuber Singh s/o Kartar Singh and Kunware Singh s/o Kartar Singh and both were residents of the same village. The discrepancy pointed out in the identity of P.W-2 is sketchy in nature.

100. About the delay in recording the statement of P.W-2 by the Investigating Officer (P.W-6), it may be noted that P.W-2 had categorically stated that he had left the village in the evening soon after the incident and stayed in the house of her Aunt for 2-3 days. He was not interrogated by the Investigating Officer at that point of time.

101. From the statement of the P.W-6, the first Investigating Officer, it is further evident that the witnesses were not produced by the informant till 08.12.1997.

102. A perusal of the case diary further indicates that statements of witnesses were recorded only after the accused persons Abhinesh and Dinesh @ Lambri were arrested. It is also evident from the record that there was a lot of pressure on this witness, so much so that he gave a notary affidavit to the CBCID on 25.03.1998 that he had not witnessed the incident as he was not present on the spot and that he did not give any statement to the Investigating Officer and that he was falsely indicated as a witness in the FIR.

103. As noted above, P.W-2, on hearing the contents of this affidavit which was produced by the defence in the Court, had categorically stated that he was forced to sign blank papers under threat with dire consequences. At the cost of repetition, at this juncture, we may also note that the testimony of prosecution witness, in the instant case, had commenced only on 21.11.2005 and by that time, the informant of the incident namely Shailendra Pratap Singh @ Babloo had already been killed. The delay in recording the statements of eyewitnesses in the instant case, thus, stood explained, to the satisfaction of the Court.

104. Further from the testimony of D.W-2, the Superintendent of Police, CBCID who had received investigation on 06.08.1998 about three accused persons Ashok Kumar, Rajendra Nath, Anand Kumar, uptil 17.05.1999 and submitted chargesheet against them stated that many people gave affidavit during investigation. Kuber Singh might have given affidavit to a previous investigating officer, and stated that he recorded details of all those who gave affidavit to him previous Investigating Officer, CBCID. About the affidavit of P.W-2, Kuber, it has come in the cross examination of D.W-2 (defence witness) that the he inquired from the previous Investigating Officer about the affidavits of witnesses and it was transpired that those affidavits were filed at the instance of the Gram Pradhan Ashok who was also an accused in the instant case. D.W-2 further stated that he came to know during investigation that accused Rajendra Nath got himself lodged in jail for an offence under Section 60 of the Excise Act as a part of the conspiracy. He further stated on his own that the previous Investigating Officer recorded the statement of Kuber Singh in the case diary and also noted therein that Kuber Singh was also called Kunware Singh.

Non production of a witness:-

105. As noted above, P.W-1, in his deposition in the Court, stated that another Durga Shankar would also be produced in evidence and had proved the identity of P.W-2 as Kuber Singh s/o Kartar Singh. Two other witnesses namely Durga Shankar and Balram did not come forward but that fact by itself would not demolish the case of the prosecution which is supported by the testimony of two eyewitnesses, one related to the deceased and another, on independent witnesses.

Examination of the accused-appellants under Section 313 Cr.P.C:-

106. Lastly, on the contention of the learned counsel for the appellants about the discrepancies shown in the statements of the appellants under Section 313 Cr.P.C, careful reading of the question nos.'1' and '2' put to the accused persons makes it evident that the statement of P.W-1 was extracted to the accused bring to the knowledge of the individual accused appellants that they all were mentioned as 'accused' in the testimony of P.W-1 Deshraj. The question no.2 relates to the evidence of P.W-2 Kuber Singh and the statement therein that 'accused persons' ran towards South on their shouting, is only (extract) of the statement of P.W-2. From these two questions, it is evident that the testimony of two eyewitnesses Deshraj Singh (P.W-1) and Kuber Singh (P.W-2) were clearly narrated to the accused persons calling their explanation on the said incriminating circumstances. No explanation had been offered by the accused persons and the only answer was stated that they were implicated because of enmity. There is no substance in the submission of the learned counsel for the appellants that the examination of accused persons under Section 313 Cr.P.C become perfunctory for use of words "आप अभियुक्त गढ़" (in question no.1) and "मुलज़िमान" in question no.2, for the above noted reasons.

Conclusion:-

107. In the totality of facts and evidence on record, taking note of the fact that the present is a case of eye-witness account and that the statements of two eye witnesses entered in the witness box had been carefully appreciated by us, we find that there is no reason to disbelieve or reject the testimony of eye witnesses who are otherwise found trustworthy and reliable. The deceased had been attacked by the appellants in broad day light. The motive behind the attack is also apparent considering the previous enmity between the appellants and the deceased. The ocular evidence is corroborated by medical evidence. For some insignificant, normal or natural inconsistencies in the statements of eyewitnesses, and the reports proved by formal witnesses prepared at various stages of investigation, the conviction of the appellants by the trial court cannot be set aside.

108. In the matter of appreciation of evidence of eyewitness, it is settled that the evidence is to be considered from the point of view of trustworthiness. The test is whether same inspired confidence in the mind of the Court. The contradictions, inconsistencies, exaggerations or embellishments, which do not go to the root of the matter and usher in incongruities are not to be given undue emphasis. Every omission cannot take place of a material omission and minor contradictions which do not affect the core of the prosecution case should not be taken as a ground to reject the prosecution evidence. The evidence of witnesses need not be discarded if it is corroborated on material aspects by other evidence on record. Reference Yogesh Singh vs Mahabeer Singh & ors reported in (2017) 11 SCC 195, it is also well settled that the prosecution is not to produce all the witnesses said to have seen the occurrence. The material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need to be produced without unnecessary and redundant multiplication of witnesses. General reluctance of an average villager to appear as a witness and get himself involved in case of rival village faction when tempers of both sides are running high, has to be borne in mind. Reference Raghubir Singh vs State of U.P reported in (1972) 3 SCC 79, we may further note that the witnesses, in the instant case, had been subjected to grueling cross examination and nothing material could be pointed or found out to create a dent in the prosecution story.

109. Having considered the above legal principles, upon appreciation of the evidence of the eye witnesses and other material adduced by the prosecution, we find that the prosecution has discharged its burden in proving guilt of the appellants for the charged offences beyond reasonable doubt. We do not find any good ground warranting interference with the findings of the trial court.

110. The judgment and order dated 28.02.2009 passed by the Additional District and Sessions Judge, Court no.8, Fatehpur, arising out of the Case Crime no.302 of 1997 in Sessions Trial no.01 of 1999, challenged in two connected appeals nos.1626 of 2009 and 1627 of 2009 whereby two appellants namely Abhinesh, Dinesh @ Lambri have been punished under Sections 147, 148, 302/149, 302/120B IPC Police Station-Thariaon, District-Fatehpur, is hereby affirmed.

111. Both the appeals are dismissed being devoid of merits.

112. The appellants Abhinesh, Dinesh @ Lambri are in jail.

113. Certify this judgment to the court below immediately for necessary action.

114. The trial court record be sent back immediately.

Order Date :- 13.04.2023

Harshita