Ashok Singh and Others vs State of U.P.

Pratyush Kumar, J.—1. The instant appeal filed by accused appellants is directed against the judgment and order dated 2nd June, 1981 passed by Sri A.L. Srivastava, the then IInd Additional Sessions Judge, Hardoi in Sessions Trial No. 435 of 1980 whereby appellants were convicted under sections 302/34,307/34 IPC and sentenced to undergo imprisonment for life and seven years'' rigorous imprisonment, respectively.

The criminal appeal filed by accused appellant Ajeet Singh is also directed against the same judgment and order whereby the appellant Ajeet Singh was convicted and sentenced as above.

Criminal Appeal No. 426 of 1981 has been filed by accused appellant Anurudh Singh against the same judgment and order whereby the aforementioned appellants were convicted and sentenced as above.

During the pendency of these appeals sole appellant Anurudh Singh of Criminal Appeal No. 426 of 1981 has died resultantly Criminal Appeal No. 426 of 1981 stood abated. The rest two appeals arise out of the same session trial and against the same judgment, they are being disposed of by a common judgment.

The facts of the prosecution case in the instant appeal may be summarised as under:

On Ist April, 1980 at 8.30 P.M. Raja Bux Singh R/o village Mithanapur, P.S. Shahabad, District Hardoi gave a written report at P.S. Shahabad stating therein on the same day at about 5.30 P.M., on the dispute of carrying bricks on a buffalo cart in front of Chabutara of Raj Kumar Singh, an altercation took place between Ashok Singh on one hand and Raj Kumar Singh on the other hand. Virendra Singh alias Ravi Singh was accompanying Ashok Singh and the buffalo cart belonged to Ajit Singh. In the last, Ashok Singh and his companions had to bring the bricks by another route. At that time the first informant was talking with Vikram Singh in his ahata and heard the altercation, later on they were joined by Harihar Singh, Jagpal Singh of village Sharma and Yogeshwar Singh. At about 6 P.M. Ashok Singh armed with licensed gun of his father Virendra Singh alias Ravi Singh, Ajit Singh and Anurudh Singh armed with illicit guns, after coming out from the northern door of Ashok Singh, shot Raj Kumar Singh, Ram Kumar Singh and Rajendra Singh suddenly. All these three when struck by gun shots fell on the cots. Hearing sounds of gun shots villagers and the witnesses reached there and warned the assailants who escaped from the spot. Raj Kumar Singh, Ram Kumar Singh and Rajendra Singh were severely injured. With the help of family members he was bringing them on the bullock cart to the police station, at village Daniyapur Raj Kumar Singh succumbed to injuries and died.

At this, chick FIR was scribed, Case Crime No. 89 of 1980 under sections 302 and 307 IPC was registered and entry was made in the general diary of the police station. Investigation was entrusted to S.I. N.L. Singh. S.I. Lallu Singh held the inquest proceedings meanwhile injured were sent for medical examination and treatment. Spot was inspected. Recovery memo of one empty cartridge recovered from the spot along with wads and caps of cartridges, were prepared. Samples of blood stained earth and simple earth were taken. Its recovery memo was prepared. Blood stained parts of the mattress were taken into possession as also blood stained cloths of Rajendra Singh injured and their recovery memo were prepared. Search was made to arrest the accused persons with the hope of recovering weapons of murder but the accused could not be found. After S.I. Nand Lal Singh proceeded on leave, investigation was taken over by S.H.O. Mohan Singh who obtained processes under section 82/83 Cr.P.C. against the present appellants and executed them, whereupon the present appellants surrendered before the Court and charge-sheet was submitted against all the four accused persons.

The case was committed to the Court of Session where the appellants were charged under sections 302/34, 307/34 (On two counts) IPC which they denied and claimed to be tried.

In order to prove the charges in the documentary evidence, besides other papers, the prosecution has filed written report Ext. Ka-1, chick FIR Ext. Ka-11, postmortem report Ext. Ka-4, recovery memo Exts. Ka-2, Ka-3, Ka-25-Ka 28, Ka-30 and Ka-31. Executed processes under sections 82-83 Cr.P.C. Ext. Ka-46-48, radiological reports Exts. Ka-5 and Ka-6, injury reports Ext. Ka-7-8, supplementary reports Ext. Ka-9, Ka-10 and site plan Ka-29, report of the chemical examiner Ext. Ka-50 and serologist''s report Ext. Ka-51. In the oral evidence the prosecution has examined 17 witnesses. After close of the prosecution evidence statements of the accused persons were recorded under section 313 Cr.P.C. wherein they admitted that deceased appellant Anurudh Singh was the father of present appellant Ajeet Singh and appellants Ashok Singh and Virendra Singh alias Ravindra Singh are cousin. They denied the facts stated by the eye witnesses, pleaded ignorance about the death of Raj Kumar Singh near village Daniyapur. They also pleaded ignorance about the facts stated by Dr. S.K. Luthara P.W.5, Dr. N.A. Khan P.W.7 and Dr. S.C. Vaish P.W. 8. They also pleaded ignorance about the steps taken by the police officer in the course of investigation, however, they denied that after the occurrence they were absconding. According to them witnesses were giving false evidence against them on account of enmity. Ashok Singh appellant also stated that to his house cart could not reach going infront of the door of the deceased. In the defence no evidence was given.

The learned trial judge after hearing the arguments convicted all the four accused and sentenced them as above.

Feeling aggrieved the appeals were preferred by appellants before this court out of which one stood abated. We have heard Sri Manish Bajpai, learned counsel for the appellants, Sri Umesh Verma, learned AGA for the State and perused the record.

According the learned counsel appearing for the appellants the impugned judgment is against weight of the material available on record and it suffers with several legal infirmities. To elaborate this, he has submitted the following grounds of attack:

"(a) The learned trial Judge has erroneously held the FIR to be prompt. According to him the FIR is delayed and ante timed.

(b) There is contradiction between oral evidence and the medical evidence and they are incompatible with each other.

(c) The prosecution has failed to prove the motive of the occurrence.

(d) Non recovery of weapons of murder has been erroneously ignored.

(e) The occurrence had taken place in the night and none saw it, eye witnesses were planted.

(f) From the place where the eye witnesses claimed to have seen the incident it was impossible to see the place of occurrence."

On behalf of the respondent these arguments have been repelled and it has been submitted that the presence of witnesses is natural and their testimonies have been rightly found to be reliable by the learned trial Judge. Learned AGA has further submitted that out of four, two witnesses are injured witnesses. Their presence cannot be disputed. According to him the findings recorded by the learned trial Judge are factually and legally sound and they warrant no interference in the present appeal.

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni v. State of Gujarat [, 1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained." In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [, 1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

In view of the obligation of the appellants court first we would like to give in brief the details of prosecution evidence adduced before the trial court. The substance of the testimonies of the prosecution witnesses is as under:-

"Raja Bux Singh P.W.1 is the first informant and also an eye witness of the occurrence. He has supported the prosecution version and proved written report Ext. Ka-1. Ram Kumar Singh, P.W.2 is an injured witness. He has also supported the prosecution version. Rajendra Singh, P.W.3 is also an injured witness, he has duly corroborated the prosecution version."

Jag Pal Singh, P.W.4 is an eye witness, whose name finds place in the first information report, though he is resident of another village Sharma, he has given reason for his presence at the spot and fully supported the prosecution version.

Dr. S.K. Loothara, P.W.5 is the medical officer who on 2nd March, 1980 at 4 P.M. conducted the postmortem examination of the dead body of deceased Raj Kumar. He has proved the postmortem report Ext Ka-4 and described the facts noted by him during external and internal examination of the dead body. According to him 5th rib was fractured, pleura and right lung were lacerated. He has recovered 21 pallets from various organs of the dead body. According to him death was caused due to shock and haemorrhage as a result of ante mortem injuries, which were sufficient in the ordinary course of nature to cause death. Injuries were caused by fire arm. Death could have occurred between 6P.M. to 8 P.M. at 1st April, 1980. In the postmortem report he has recorded 14 ante mortem injuries. They read as under:

"1. Fire arm wound of entry over left half area back of left leg, measuring. 25 cm x 0.25 cm x muscle deep 2 cm below the left poptela fossa.

Multiple fire arm wound of entry in an area of 15 cm x 10 cm x partially skin to chest cavity deep over back of right chest (upper part) 31 cm above the Rt. A.S.I.S. each measuring 0.25 cm x 0.25 cm x skin to chest cavity deep forward and slightly down ward direction.

Multiple fire arm wound of entry in an area of 9 cm x 3 cm x skin to chest cavity over right side of lower back of chest 7 cm below the right angle of scapula and 18 cm above enteir superior iliac spin right side each measuring 0.25 cm x 0.25 cm x skin to chest cavity deep direction of wound forward and slightly downward.

Multiple fire arm wound of entry in an area of 18 cm x 13 cm over left side of back of chest lower part 12 cm above the left ilium bone each measuring 0.25 cm x 0.25 cm x chest cavity deep. Direction forward an slightly downward.

Multiple fire arm wounds of entries with abrasion in an area of 27 cm x 10 cm over right of upper back arm 4 cm above the right elbow joint and 6 cm below the right shoulder each measuring 0.25 cm 0.25 cm x skin to muscle deep and the abrasion varying from 0.75 cm x 0.25 cm 0.5 x 0.5 cm. Direction of wound forward and slightly downward.

Firearm wound of entry 0.25 cm x 0.25 cm x skin deep over nape of neck.

Three fire arm wounds of entry in an area of 7 cm x 2 cm over right axillary region 11 cm away from the right nipple at 10 0'' clock position each measuring 0.25 cm x 0.25 cm x skin to muscle deep.

Two fire arm wounds of entries over right side of chest 16 cm away from the right nipple at 7 o'' clock position each wound measuring 0.25 cm x 0.25 cm chest to abdominal cavity deep. Direction forward and downward.

Two firearm wounds of entries over right side of head 7 cm away from the right ear at 8 o'' clock position, each measuring 0.25 cm x 0.25 cm x scalp deep two small shots recovered underneath.

Firearm wound of entry four in number in an area of 5 cm x 2 cm over left side of back 4 cm below the left shoulder each measuring 0.25 cm x 0.25 cm x skin to muscle deep.

Two firearm wounds of entries 3 cm apart from each other over back of left of upper arm 16 cm above the left elbow joint each measuring 0.25 cm x 0.25 cm x skin deep.

Abrasion 2 cm x 1 cm over back of left elbow.

Abrasion 3.5 cm x 1 cm over lateral side of left forearm.

Two abrasions 2 cm apart from each other measuring 3 cm x 1 cm and 4 cm x 0.5 cm over right knee joint. Ram Kumar Shukla, P.W.6 was the constable at P.S. Shahabad and in that capacity on 4th April, 1980 he had taken dead body of deceased Raj Kumar Singh to the mortuary at Hardoi."

Dr. N.A. Khan P.W.7 is the radiologist who at District Hospital Hardoi, who on 4th April, 1980 had x-rayed injured Rajendra Singh and Ram Kumar Singh and proved x-ray Exts. Ka-5-Ka-6 report and x-ray plates, Exts. 1-11.

Dr. S.C. Vaishya P.W.8 as Medical Officer P.H.C. Shahabad in the intervening night of 1st/2nd April, 1980 at 1.30 A.M. medically examined Ram Kumar Singh and Rajendra Singh 1.00 A.M.. He proved the injury reports and supplementary injury reports Exts. Ka-7 to Ka-10. According to him on the person of Raj Kumar Singh he found following injuries:

"1. Multiple gun shot wounds of entry with inverted margins scattered in an area of size 20 cm x 10 cm (vertical as illustrated in the diagram shown in the injury report) on left side head, cheek and neck each of size 0.3 cm x 0.2 cm x muscle deep i.e. 0.3 cm and 3 to 9 cm apart from one from the other. The wounds were bleeding on touch, red colour and were five in number.

Two gun shot wounds of entry with inverted margins on left side chest. The outer one is of size 0.3 cm x 0.2 cm muscle deep i.e. 0.3 cm while the inner one of size 0.5 cm x 0.3 cm x muscle deep i.e. 0.3 cm and 4.5 cm apart one from the other. The wounds were bleeding on touch. Red color, inner wound was 7 cm above the left nipple at 12 o'' clock position."

He, on the person of Rajendra Singh during the medical examination found the following injuries:

"1. Nine gun shot wounds of entry with inverted margins on left side face, cheek and neck, scattered in an area of size 18 cm x 11 cm as illustrated in the injury report of size 0.3 cm x 0.3 cm x muscle deep 0.2 cm each and 3.5 cm to 7 cm apart one from the other. Bleeding present on touch. Red colour.

Gunshot wound of entry with inverted margins of size 0.3 cm x 0.3 cm x 0.3 cm i.e. muscle deep on left side chest 3.75 cm above the left nipple at 11.30 o'' clock position. Wounds bleeded on touch. Red colour.

Fourteen gunshot wounds of entry each of size 0.3 cm x 0.3 cm x muscle deep scattered in an area of size 35 x 18 cm (when left upper arm was kept close with chest and abdomen) on upper half of the left side back and back of left upper arm and left forearm as illustrated in injury report. Each wound 1.5 cm to 15 cm apart one from the other.

Four gunshot wounds of entry each of size 0.3 cm x 0.3 cm x muscle deep on outer side lower half part of the right forearm and 1.5 cm to 7.5 cm apart one from the other.

Three gun shot wounds of entry each of size 0.3 cm x 0.3 cm x muscle deep on outer side of the left thigh and 11 to 20 cm apart one from the other.

Two gunshot wounds of entry on lower and inner part of the right thigh each of size 0.3 cm x 0.3 cm x muscle deep and 9.5 cm apart one from the other.

Gunshot wound of entry on sole of the right foot on the root of hallux of size 0.3 cm x 0.3 cm x 0.2 cm."

All above gunshot wounds were having inverted margins. Bleeding from the wounds on touch was present. Colour was red, Except injury Nos. 1,2 and 3, which were kept under observation, all other injuries were simple. On the basis of x-ray reports he prepared his supplementary report Ext. Ka-10. From which it was found that he had foreign body in his face indicating presence of pellets.

According to him injuries of Raj Kumar Singh were simple. X-ray of skull and chest was advised to find out whether any pallets was in those parts. He has opined injuries of Raj Kumar Singh were caused by fire arm and their duration was six hours.

According to him injuries sustained by Rajendra Singh except, injury Nos. 1,2 and 3 which were kept under observation other were simple. On x-ray examination pallets were found in his face. He has also opined injuries were caused by fire arm. Duration was six hours.

Raghunath Mishra P.W.9 was the malkhana moharrir. On 30th July, 1980 he had received nine sealed bundles of the case property. He has also stated that on 4th August, 1980 constable Nakshtra Singh P.W.10 had taken six sealed bundles for their transmission to chemical examiner, Agra. Constable Nakshtra Singh, P.W.10 posted at P.S. Shahabad at the relevant time had taken case property from the malkhana of P.S. to C.M.O. Office, Hardoi.

Vishwanath Pandey P.W.11 is the clerk who on 4th August, 1980 was posted as clerk in C.M.O. Office, Hardoi and had sent sealed case property in sealed bundles for chemical examination. Asfaq Husain P.W.12 was head moharrir at P.S. Shahabad on Ist April, 1980 who scribed chick FIR Ext. Ka-11 and proved it. He has also proved report of the general diary wherein registration of the case was entered. Lallu Singh, P.W.13 was the Sub-Inspector who conducted the inquest proceedings on Ist April, 1980 of the dead body of deceased. Raja Imam, P.W.14 is the constable who had taken injured Rajendra Singh and Ram Kumar Singh for their medical examination with Chitthi Majrubi Ext Ka-13 and Ka-14. Prem Prakash Singh P.W.15 is the Head Moharrir who transmitted case property of this case by the hand of constable Nakshtra Singh to Sadar Malkhana, Hardoi. S.I. Nand Lal Singh, P.W.16 is the first investigating officer who has stated the details of the steps taken by him during the investigation and proved papers prepared by him.

Inspector Mohan Singh P.W.17 was Station House Officer at P.S. Shahabad at the relevant time who subsequently taken over the investigation and submitted the charge sheet.

The defence case is that it was a blind murder committed in the night. The accused have been falsely implicated. In the defence no evidence was given.

For the sake of convenience we can categorise the prosecution evidence as under:

"Medical evidence, evidence of chemical examination, ocular evidence, evidence of police personnel."

Medical Evidence

Medical evidence consists of in the form of statements of Dr. S.K. Loothara P.W.5, Dr. N.A. Khan, P.W.7, Dr. S.C. Vaishya P.W.8, postmortem report Ext. Ka-4, x-ray reports Exts. Ka-5 and Ka-6, injury reports Exts. Ka-7 and Ka-8, supplementary reports Exts. Ka-9 and Ka-10.

From the evidence of Dr. S.K. Loothara P.W. 5 homicidal death of deceased Raj Kumar Singh by gun shot wounds stands established being unchallenged. The doctor was cross-examined only on the point of duration of death, manner in which fires could have been sustained by the deceased. According to the doctor there could be variation of six hours on the either side. About the time of death estimated by him but he emphatically denied that gun shot wounds sustained by the deceased could have been caused while he was sitting on the cot in the posture of palthi. The facts stated by this witness are duly corroborated by the findings recorded by him in the postmortem report Ext Ka-4. We hold that facts stated by this witness are established and correctness of his opinion would be about time of death and manner of injuries would be considered when ocular evidence will be examined and evaluated by us.

Dr. S.C. Vaishya P.W.8 was not cross-examined. Except that he was suggested that injuries caused to both the injured could have been caused on Ist April, 1980 at 10 P.M. His testimonies is duly corroborated by injury reports Exts. Ka-7 and Ka-8.

Dr. N.A. Khan P.W.7 was the radiologist who x-rayed Rajendra Singh and Raj Kumar Singh on the advice of Dr. S.C. Vaishya P.W.8. During cross-examination he has stated that on the face of Rajendra Singh he saw large number of foreign bodies, however, in the x-ray examination of Raj Kumar Singh he found only two foreign bodies one in the head one on the face of Raj Kumar Singh.

On the basis of these evidences we hold that on Ist April, 1980 Rajendra Singh and Raj Kumar Singh sustained gun shot injuries.

Chemical Examination reports

Ext. Ka-50 is the report of assistant chemical examiner. According to this report 11 items were sent for chemical examination and on examination all the articles were found blood stained.

Ext. Ka-51 is the report of seriologist who found human blood on parts of mattresses, Kurta, Baniyan, Tahmat and sample of blood stained earth. He further found human blood on banian, bushart and pyjamas of the injured. Blood stain on the underwear and in the sample of blood stained earth were found disintegrated.

In the link evidence various police personnel were examined. Vishwanath Pandey P.W.11, the then clerk of C.M.O. Office, Hardoi has proved the case property transmitted to Chemical Examiner, Agra in sealed condition. Raghunath Misra P.W.9 Moharrir of Sadar Malkhana has proved these bundles were transmitted to C.M.O. Office on 4th August, 1980 in sealed condition. Nakshtra Singh P.W.10 took nine bundles of case property from malkhana of police station in sealed condition to sadar malkhana on 30th July, 1980 and thereafter he also took these on 4th August, 1980 from sadar malkhana to C.M.O. Office. Case property was transmitted to Chemical Examiner by Vishwanath Pandey P.W.11 by railway parcel. These witnesses were not cross-examined, therefore, on the strength of their evidence it is proved that case property remained in sealed condition and duly sent to office of chemical examiner, Agra.

Ocular evidence

On six grounds impugned judgment has been impeached before us. Out of these 2nd, 3rd, 5th and 6th grounds touches the trustworthiness of ocular evidence. We will deal with the ocular evidence along with the grounds of challenge canvassed before us. Raja Bux Singh P.W.1 is the first informant. The two injured were promptly taken to the police station and medical treatment was promptly provided. This in itself indicates that occurrence must have been seen by villagers otherwise injured could not have received medical attention promptly. This probability negates 5th argument that occurrence had taken place in the night and none saw it and further witnesses were planted. Raja Bux Singh, P.W.1 claims that he was present when altercation took place and further when the occurrence took place. He has given reason for his presence that he was having talks with Vikram Singh near the place where altercation and occurrence took place.

He has faced long cross-examination. His testimony remains unshaken. He has not concealed that he and deceased are of same family and one injured Rajendra Singh is his younger brother. He has given vivid description of the events which had taken place in reference to altercation and occurrence. In the evening hours it is normal practice of the villagers to sit with each other and converse. This practice makes presence of this witnesses at the scene of occurrence at the relevant time natural and probable. It was day time, therefore, he had opportunity to observe the occurrence. Though on behalf of the defence argument has been advanced that where this witness was sitting place of occurrence could not be seen. According to this witness when altercation was taking place he was sitting in the ahata of Vikram Singh. During the altercation and the occurrence he would have continued to sit there is unnatural and improbable. Human curiosity would persuade any nearby person to see the developments taking place. In the site plan Ext. Ka-29 this witness has been shown to be in north eastern side from the place of occurrence. During cross examination this witness has been cross-examined on this point and he denied this fact that from that place he could not have seen the occurrence, therefore, we find that he had opportunity to see the occurrence. Only on account of his being relative, his testimony which successfully withstood the test of cross-examination cannot be discarded, therefore, we find him to be a reliable witness.

Ram Kumar Singh P.W.2 is an injured witness. His presence on the spot at the relevant time cannot be doubted. He has faced the test of cross-examination successfully. He has no previous enmity with the appellants. His testimony appears to be truthful account of the occurrence.

Rajendra Singh P.W.3 is also an injured witness. Though in his cross-examination one contradiction finds place, on the point that before the investigating officer this witness has stated that after coming out of the door of the house of Ashok Singh all the accused suddenly opened fire on them. Whereas his other accounts admit some gap between these two events. Though the contradiction touches the occurrence but it does not hit the substratum of prosecution story, therefore, we think that this contradiction deserves to be ignored. The witness has no previous enmity with the appellants. He faced the test of cross-examination successfully. His testimony also inspires our confidence.

The 4th witness Jag Pal Singh P.W.4 though he is resident of another village but from the reason for his presence at the spot on the relevant time as disclosed by him before the trial court he also appears to be a natural witness. His testimony in the cross-examination remains unshaken. He has no reason to depose falsely against the appellants, therefore, we find him to be a trustworthy witness.

The contradiction between oral and the medical evidence alleged on behalf of the appellants in our opinion is no contradiction. Number of gun shots were fired. It is expecting too much that all the persons who were witness to those fires could correctly retain in memory and reproduce before the court the facts observed by them at the time of occurrence. Next objection regarding motive is also appears to be without substance. Altercation between Ashok Singh and his companions with Raj Kumar Singh has been proved successfully by the prosecution. Its proximity in time leads us to infer that immediate motive for the occurrence existed.

Thus ocular evidence about the occurrence adduced by the prosecution is trustworthy and prosecution has successfully proved that the appellants and their companions had fired on the deceased and two injured with the intention of committing murders.

Evidence of police personnel

According to the learned counsel for the appellants FIR is anti timed and the investigating officer had failed to recover weapons of murder. On the basis of these two he has submitted that genesis of the prosecution story becomes doubtful and appellants deserve to be acquitted.

The plea touching anti timing FIR has been rejected by the learned trial Judge, we are also of the same opinion because in the present case FIR has been lodged at 8.30 P.M. and according to the evidence of Ashfaq Husain P.W.12 scribe of chick of FIR who has stated that special report was sent on 2nd April, 1980 at 2.55 A.M. by the hand of constable Dinesh Singh. Thus almost within six hours special report was dispatched and the bearer of the special report came back after handing over the special report at about 1.20 P.M. on 2nd April, 1980. The prompt dispatch of special report rules out any possibility of anti timing of FIR.

Inspector Mohan Singh P.W.17 the second investigating officer has given details that when raided appellants were found absconding from their houses, therefore, process under sections 82 and 83 Cr.P.C. were obtained from the concerned Magistrate and these processes were executed on 24th April, 1980 whereupon the appellants surrendered before the court of Magistrate. Since the accused remained absconding recovery of weapons of murder was not possible and on this account reliable and trustworthy prosecution version cannot be disbelieved.

In view of above, we hold that prosecution has successfully proved that surviving appellants with the deceased appellant Anurudh Singh in furtherance of common intention of murdering Ram Kumar Singh fired on Ram Kumar Singh, Rajendra Singh and Raj Kumar Singh. As a result of firing Raj Kumar Singh died and Ram Kumar Singh and Rajendra Singh sustained gun shot injuries. Injuries sustained by both the injured persons were on vital parts of the body and caused with intention to commit their murders also. Therefore, against the surviving appellants charges under sections 302/34, 307/34 (on two counts) stands proved.

Appeals lack merit. Arguments advanced in support thereof are without substance. The impugned judgment contains neither factual infirmity nor any legal error. Conviction and sentences of the surviving appellants are confirmed and their appeals are dismissed.