Harihar Singh and Others vs State of U.P.

Om Prakash-VII, J.—This criminal appeal has been preferred by the accused appellants against the judgment and order dated 27.3.1982 passed by the District & Sessions Judge, Ghazipur in Session Trial No. 150 of 1980 (State v. Harihar Singh and others) convicting and sentencing the appellants for the offences punishable under Section 302 , IPC read with Section 149 , IPC to undergo life imprisonment, for the offence under Section 307 , IPC read with Section 149 , IPC to undergo five years'' rigorous imprisonment and for the offence under Section 323 IPC read with Section 149 IPC to undergo six months'' rigorous imprisonment. Appellants Harihar Singh, Ram Awadh Singh, Ravindra Singh, Mahendra Singh and Ashok Singh have also been convicted and sentenced for two years'' rigorous imprisonment for the offence under Section 148 IPC whereas appellants Sheomurat Singh, Baiju Singh, Musafir Singh and Kesho Singh have been convicted and sentenced for one year''s rigorous imprisonment under Section 147 , IPC All the sentences have been directed to run concurrently. At the outset, it is relevant to mention here that during pendency of this appeal, the appellant No. 1 - Harihar Singh, appellant No. 2 Sheomurat Singh, appellant No. 3 Ram Awadh Singh and appellant No. 4 Kesho Singh have died. Accordingly, vide orders dated 11.1.2012 and 28.5.2012, this Court has abated the appeal as against the appellant No. 1 - Harihar Singh, appellant No. 2 Sheomurat Singh, appellant No. 3 Ram Awadh Singh and appellant No. 4 Kesho Singh.

Now, we are proceeding to consider the present appeal in respect of rest of the appellants i.e. Ravindra Singh, Musafir Singh, Ashok Singh, Mahendra Singh, and Baiju Singh.

The facts of the case, as unfolded by the informant Bhaggal in the First Information Report (in short ''F.I.R.''), are that in the morning of 24.12.1979 on the door of Doodh Nath Singh son of Laxmi Singh village Gauri, a panchayat with regard to some financial transaction between Dinesh Chaubey and Beni was going on. Baiju son of Kesho Singh, Ram Lochan Singh, Nanku son of Gaya Chaubey and Shyam Awadh and Ghuran nephew of the informant Bhaggal Yadav, and Sufer, brother of the informant had gone to the said panchayat. Shyam Awadh, the nephew of the informant told to Beni that Dinesh Chaubey was telling on oath that he had returned the money and do not harass him as he is Brahman. Baiju Singh intervened in the matter and told that now the money will be recovered from you (Shyam Awadh) instead of Dinesh, men the brother and nephew of the informant said that if he had guts he may recover. On this, abusing (gali-galauj) started. Exhorting that the matter would be decided today, Baiju Singh went towards his house. When Sufer, brother of the informant, Shyam Awadh, nephew of the informant and Ghuran were returning to their house, at about 10.00 a.m. and had reached near Jolahwatar, the accused, namely, Harihar Singh, Ram Awadh Singh armed with gun and Sheomurat Singh, armed with lathi, appeared at the scene, surrounded them and exhorted to kill them, and let them not escape. On this, Ashok Singh, Ravinder Singh, Mahendra Singh, armed with Ballam and Baiju Singh, Kesho; Singh, Musafir Singh, armed with lathies, started beating the brother and nephew of the informant. On the hue and cry, Suresh, theelder brother of the informant and his daughter/Urmila reached there, and the assailants had also beaten them. Upon hearing the noise, the informant, Hari Krishna Chaubey, Kalpnath Chaubey, Aadi Nath Chaubey, Vrindavan Chaubey, Bangur Yadav and Smt. Wasliya rushed to the spot and witnessed the incident. On receipt of injuries, Ghuran fell down on the ground, then Baiju Singh with lathi and Ashok Singh with Ballam caused injuries to him and due to which, Ghuran died spontaneously. The dead body of the deceased Ghooran was lying on the spot. After sending his brother Sufer and nephew Shyam Awadh to the hospital Saidpur, he went to police station to give information. The written report submitted by the informant is Ext. Ka-1.

On the basis of the written report (Ext. ka-1) scribed by one Bindra Chaubey, chik First Information Report (Ext. Ka-9) was registered at Police Station concerned on 24.12.1979 at 2.00 p.m. mentioning all the details as had been described in Ext. Ka-. 1. GD. entry was also made at the same time, which is Ext. Ka-7.

Investigation of the matter was entrusted to sub-Inspector A.S. Jafri. After recording the statement of informant Bhaggal and deceased Suresh and sending the injured persons to P.H.C. Saidpur, he along with other police personnel rushed to the place of occurrence. He reached the spot on the same day, prepared the inquest report (Ext. ka-28). The Investigating Officer also prepared photo lash, challan lash and report for post-mortem (Ext. Ka-29 to Ka-31). The dead body was kept in sealed cover preparing the sample seal and was dispatched through constable Chandrabhan Tiwari and Sudarshan Yadav along with the police papers for post-mortem. Site plan (Ext. Ka-32) was also prepared. The Investigating Officer also obtained the sample of plain earth and bloodstained earth from the place of occurrence and kept them in separate container in a sealed condition and also prepared memo (Ext. Ka-33) in this regard.

Autopsy report (Ext. ka-6) was prepared after conducting the post-mortem on 25.12.1979 at 1.00 p.m.

As per the post-mortem report, the deceased was about 45 years old and probable time of death was about one day before. On external examination, the deceased was average body built and the rigor mortis was present in both the upper and lower limbs. Eyes and mouth were closed.

On examination of the dead body of the deceased, following ante-mortem injuries were found:

"1. Abraded contusion 2 cm. x 2 cm. on the right side of forehead just above the eye brow.

Abraded contusion 2 cm. x 1.5 cm. on the left side of face 2 cm. in front of left year.

Contused swelling 5 cm. x 3 cm. on the left side of back of head 10 cm. behind the left year.

Overlapping contusion in an area of 12 cm. x 6 cm. on the left side of neck 3 cms below the left ear.

Punctured wound with clean cut margins 0.75 cm. x 0.75 cm. x 1.25 cm. on the....(P.T.) of right hand in the space between index and middle fingers at its web directed from behind forward.

Abrasion 1 cm. x 0.5 cm. on the front of right knee joint.

Abraded contusion 6 cm. x 2 cm. horizontally on the outer side of left side of chest 15 cm. below the left axilla."

According to the doctor, left parietal, temporal and occipital bones were fractured. Membranes were ruptured on the left side of injury. Base was fractured. Small and large intestines contained faecal matter and gases. Gall bladder was full. Bladder was empty.

In the opinion of the doctor, death was caused due to shock and coma on account of ante-mortem injuries.

Injured Shyam Awadh was also medically examined on 24.12.1979 at 2.50 p.m. by Dr. Ram Bilas Dubey. Following injuries were found on his body:

"1. Incised wound 16 cm. x 0.5 cm. bone deep on middle of scalp 7 cms. above root of hairs of forehead. Bleeding present. Shape of wound like U.

Incised wound 9.3 cm. x 0.5 cm. bone deep on right parietal region. Bleeding present 5.3 cm. above top of right pinna.

Incised wound 4 cm. x 0.5 cm. bone deep on right parietal region just above injury No. 2. Bleeding present.

Incised would 4.5 cm. x 0.5 cm. bone deep on right occipital region 3.3 cm. below injury No. 2. Bleeding present.

Incised wound 5 cm. x 0.5 cm. bone deep on right occipital region 2 cm. below injury No. 4. Bleeding present.

Lacerated would 1.7 cm. x 0.5 cm. x 0.3 cm. on left eye brow outer part with swelling 7 cms. x 2 cm. around it. Eye had become blackish.

Abrasion 2 cm. x 1 cm. on left pinna upper part.

Incised wound 2 cm. x 2 cm. bone deep on 1 1/2" above left ankle joint, medial side."

According to the doctor, all the injuries except Nos. 6 and 7 were caused by sharp edged weapon. Injury Nos. 6 and 7 were opined to be caused by blunt object and were fresh. X-ray was advised.

On the same day, Sufer was also medically examined and following injuries were found:

"1. Bruise 4 cm. x 4 cm. on right knee joint at its outer part. Red.

Complain of pain on chest, but no external injury seen."

In the opinion of the doctor, injury No. 1 was caused by blunt object. X-ray of knee joint was advised.

Suresh was also medically examined on the same day and the following injuries were found on his body:

"1. Lacerated wound 3.5 cm. x 2 cm. x bone deep, margins irregular, bleeding present 5 cms above left eye brow.

Lacerated wound 3.75 cm. x 0.5 cm. x bone deep on left parietal region 6 cm. above top of left pinna.

Lacerated wound 4 cm. x 0.5 cm. x bone deep on left parietal region 3.5 cm. behind injury No. 2. Bleeding present.

Lacerated wound 3 cm. x 0.3 cm. x bone deep 2 cm. behind injury No. 3 on left parietal region.

Abrasion 2 cm. x 1 cm. on right side of frontal region 8 cm. above right eye brow.

Bruise 12 cm. x 2 cm. on right side of back 6 cm. below C. 7. Red.

Bruise 5 cm. x 1 cm. on left side of back and approaching to vertebra 4 1/2 cm. below C. 7. Red.

Bruise 7 cm. x 2 cm. on left side of back on scapular region. Red.

Bruise 6 cm. x 2 cm. on top of left shoulder. Red.

Bruise 8 cm. x 6 cm. on back of left hand just above bone of finger.

Lacerated wound 1 cm. x 0.5 cm. x bone deep on back of middle of right index finger. Bleeding present."

According to the doctor, all the injuries were caused by blunt object. X-ray of skull, left shoulder, left hand and right index finger was advised.

Km. Urmila was also medically examined on 25.12.1979 and the following injuries were found on her body:

"1. Bruise 5 cm. x 4 cm. on the back part of left fore-arm 6 cm. below tip of olecranon.

Bruise 4 cm. x 4 cm. on the outer and lower part of right leg 8.5 cm. above outer malleolus"

Realizing the seriousness of the injuries of Shyam Awadh and Suresh, the doctor at P.H.C. Saidpur referred them to Sadar Hospital, Ghazipur and unfortunately, Suresh succumbed to his injuries on 28.12.1979. Dr. M.H. Abbasi sent a note (Ext. Ka-8) to Kotwali, Ghazipur informing about his death. Sub-Inspector Rajmani Mishra went to Sadar Hospital, Ghazipur and completed formalities on the dead body of Suresh on 29.12.1979 and prepared Inquest Report (Ext. Ka-14) in the presence of panchas. He had also prepared photo lash (Ext. Ka-15), challan lash (Ext. ka-16) and report for post-mortem (Ext. ka-17) and dead body was sealed in a piece of cloth and dispatched to the mortuary through constable Ram Adhin and Radhey Shyam in a sealed condition. The, constables took the dead body to the mortuary on the same day. Dr. S.C. Mishra (PW-7) conducted the post-mortem on the body of Suresh on 29.12.1979 at 2.00 p.m. and prepared post mortem report (Ext. Ka-7). As per the report, following injuries were found:

"1. Stitched wound on left side of head measuring 4 cm. in length, placed horizontally 7 cm. above the upper part of left ear.

Stitched wound 5 cm. in length situated on head placed horizontally 3 cm. backward from injury No. 1.

Stitched wound 3 cm. in length, placed horizontally on head 2 cm. backward from injury No. 2.

Stitched wound on left side forehead 3 cm. in length, 5 cm. above the mid of left eye brow.

Abrasion 1 cm. x 0.5 cm. on right side of forehead 8 cm. above the medical angle of right eye brow.

Lacerated wound 1 cm. x 0.28 cm. x skin deep on mid of right index finger (dorsal aspect).

Abraded contusion 4.5 cm. x 3 cm. on outer aspect of upper part of right thigh 10 cm. below superior, anterior iliac spine."

As per the doctor, the membranes were congested. Brain and Pleura were congested. Clotted blood was found between scalp and skull bones. Cracking of left side of parietal bone anteriorly. Clotted blood was found between skull and the meninges. Clotted blood was also found all over the brain matter. Small and large intestines were full of gases and faecal matter.

In the opinion of doctor, death was due to haemorrhage and shock as a result of head injury.

On 30.12.1979, the Investigating Officer interrogated the injured witnesses Sufer and Shyam Awadh and other witnesses. He also interrogated the accused persons.

After completing the investigation, charge-sheet (Ext. ka-27) against all the accused appellants was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by session was committed to the Court of sessions

Accused appellants appeared and initially charges under Sections 147 , 302 read with Section 149 , IPC, 307 read with Section 149 , IPC, 323, read with Section 149 , IPC were framed in the trial court against them but later on the charge was amended on 23.9.1981 as under Sections 147 , 148 , 302 read with 149 , IPC, 323 read with Section 149 , 324 read with Section 149 , IPC. All the accused have denied the charges framed against them and claimed for trial.

Trial proceeded, and on behalf of prosecution, thirteen witnesses were examined, wherein PW-1 Bhaggal, who, is eye-witness, has supported the prosecution case as has been mentioned in the written report (Ext. ka-1). PW-2 Shyam Awadh, who is an injured witness, has also supported the prosecution case. PW-3 Km. Urmila, who is also injured witness, has been medically examined on the next date of the incident. She has also supported the prosecution case. PW-4 Dr. Surendra Pratap Singh, who examined the injuries of Km. Urmila, has proved the injury report relating to her. PW-5 Dr. Ram Bilas Dubey, who examined the injuries of Shyam Awadh, Sufer and Suresh, has also proved the injury reports (Ext. ka-3 to ka-5). PW-6 Dr. Ram Lal Rai, who has conducted the post mortem on the body of Guhran and prepared the post mortem report (Ext. ka-6). PW-7 Dr. Suresh Chandra Mishra, who has conducted the post mortem on the dead body of Suresh, has proved the post mortem report (Ext. ka-7) and also the information sent regarding death of deceased (Ext. ka-8). PW-8 Head Constable Dhanush Dhari Singh, who has registered the FIR and has also made the GD. entry, has proved the chik FIR (Ext. ka-9), GD. entry No. 33 (Ext. ka-10), GD. entry No. 34 (Ext. ka-11), GD. entry No. 7 (Ext. ka-12) and letter for medical examination (chitthi majrubi) of Suresh. PW-9 Constable Chandra Bhan Tiwari and PW-10 Ram Adhin Ram, who carried the dead bodies of Ghuran and Suresh respectively to mortuary, PW-11 Sub-Inspector Rajmami Mishra, who prepared the inquest report regarding dead body of Suresh (Ext. ka-14). He has also prepared other police papers, i.e., photo lash (Ext. ka-15), challan lash (Ext. ka-16) and letter for post mortem (Ext. ka-17). PW-12 Sub-Inspector Raj Narain Mishra, who, after completing the investigation, has submitted charge-sheet (Ext. ka-27) and also proved the papers relating to arrest and attachment of properties of accused persons (Ext. ka-18 to ka-26) and PW-13 Sub-Inspector A.S. Jafri, who has prepared the inquest report of the deceased Ghuran and other police papers as Ext. ka-28 to ka-31. He has also prepared the site plan (Ext. ka-32) after inspection of the spot. Memo regarding bloodstained earth (Ext. ka-33) was also prepared by this witness. He had also taken steps for arrest of the accused persons. Process adhered against the accused persons has been proved by this witness as Ext. ka-34 to Ext. ka-42. This witness has also proved the statement of deceased Suresh recorded under Section 161 , Cr.P.C. (Ext. ka-43). Prosecution has also filed the report of forensic science laboratory regarding bloodstained earth and cloth.

After closure of evidence, statement of accused appellants under Section 313 , Cr.P.C. was recorded.

Accused appellant Ravindera Singh accepted that accused Harihar Singh is his brother. Accused Ashok Singh is the son of accused Ram Awadh Singh and accused Mahendra Singh is the son of Sheomurat Singh, accused Baiju Singh is son of accused Kesho Singh, accused Musafir Singh and Harihar Singh are cousins. This accused has accepted that all the accused belong to Thakur caste but are of different families. Bhaggal, deceased Suresh and Sufer are real brothers. Shyam Awadh is son of injured Sufer and Km. Urmila is daughter of deceased Suresh. Deceased Ghuran was a nephew of Bhaggal. A dispute was going on between Bhaggal and Ram Autar regarding landed property. Ram Autar was not the real uncle of accused Harihar Singh. One Nagendra was murdered two years prior to the present incident. Accused Harihar Singh, Awadhesh, Deo Narain and Jai Bahadur also faced trial but were acquitted. Informant Bhaggal was a witness in that case. The fact with regard to payment of Rs. 500/- to Dinesh Chaubey by Beni Madhav was in the knowledge of this accused Ravindra Singh but he denied about any panchayat on 24.12.1979. He also pleaded ignorance about the presence of Sufer, Shyam Awadh and Ghuran in the panchayat. He also showed ignorance about the presence of Baiju Singh and others in the said panchayat. Statement on oath made in the panchayat by Dinesh Chaubey in respect of payment of the advance was also not in the knowledge of this accused. The altercation said to be taken place between Baiju Singh and Shyam Awadh in the panchayat was also denied by this accused. Whether Shyam Awadh, Sufer and Ghuran were returning from the panchayat or not is not known to him. Fact of forming an unlawful assembly along with weapons attributed to them at the place of occurrence mentioned in the FIR was stated to be false. He has also denied the happening of any incident at the place in question as was mentioned in the FIR. He showed ignorance about the medical examination of Km. Urmila, Shyam Awadh, Sufer, Suresh and also about the post mortem on the dead body of deceased Ghuran and Suresh. Ignorance was also shown about taking of bloodstained earth and plain earth by the Investigating Officer from the spot. He has specifically stated that witnesses have deposed before the Court due to animosity. He further stated that on 24.12.1979 deceased Suresh was unconscious.

All the accused appellants stated more or less the same fact as was stated by the accused appellant Ravindra Singh.

The defence examined Jainath Patfiak, Lekhpal of the village concerned as DW-1 and has filed certified copy of the extract of khasra as Ext. Kha-2, report (Ext. Kha-3), statement of Suresh (Ext. Kha-4 and kha-6), judgment (Ext. Kha-5), statement of Bhaggal (Ext. Kha-7), copy of complaint (Ext. Kha-8) as documentary evidence. The appellants have also proved the statement of PW-3 Km. Urmila recorded under Section 161 , Cr.P.C. as Ext. Kha-1 placing the same before PW-13.

Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellants beyond reasonable doubt warranting their conviction and sentence. Hence this appeal.

We have heard S/Shri Sarvesh Kumar Dubey, Bryesh Sahai and P.K. Singh, learned counsel for the appellants and Shri. Narendra Kumar Singh Yadav, learned AGA for the State at length, and perused the entire record carefully.

Castigating the impugned judgment and order, learned/counsel for the appellants has made the following submissions before us:

The F.I.R. is ante-timed document and has been prepared at the Police Station concerned with the consultation of police.

The prosecution has not proved the origin and genesis of the incident and the persons stated to be present at the door of Doodhnath, where the Panchayat was convened, have not been examined, therefore, a presumption against the prosecution shall be drawn, had they been examined, they would not have supported the prosecution case.

Medical ''evidence does not support the prosecution case.

Injuries found on the body of the injured and the deceased could not be caused with the use of the weapons assigned to the accused appellants.

Food material found in the stomach also creates doubt about the relevant point of time of incident.

There is contradiction in the statement of prosecution witnesses regarding place of occurrence. In support of this submission, reference was made to the inquest report in respect of deceased Ghuran and also the statements of PW-3 Km. Urmila and the Investigating Officer.

The prosecution has changed its version from stage to stage and has made improvement, which are fatal to the prosecution case.

Prosecution case was not supported by the independent witnesses. All the witnesses examined as eye account witnesses are interested and relative witnesses.

Time and place of the incident were also not proved by the prosecution beyond reasonable doubt....

Deceased Suresh did not receive injury in the said incident because nothing was mentioned in the written report (Ext. ka-1) about the injuries received by him.

Dying declaration, said to have been recorded in the form of statement; under Section 161 , Cr.P.C., is not an admissible evidence.

PW-3 Km. Urmila, who is a child witness, is not an eye-witness as she reached the spot after hearing the noise. Further, injuries shown on her body are superficial in nature.

The eye account witnesses are not reliable witnesses, therefore, conviction cannot be based on their testimony.

In support of the aforesaid submissions, learned counsel for the appellants have placed reliance on the following decisions:

State of Punjab Vs. Sucha Singh and Others, .

State of U.P. v. Chotey Panda and others, 2003 (52) ACC 623 (paragraph No. 15).

Hem Raj and Others Vs. State of Haryana, .

Harish Chandra and Another etc. Vs. State of U.P., .

The State of Uttar Pradesh Vs. Hari Prasad and Others, .

Jeev Dan v. State, 1996 Cr. LJ 3929 (paragraph 3).

State of U.P. Vs. Puttu Lal Yadava and Others--> .

Balak Ram Vs. State of U.P., .

Muluwa and Others Vs. The State of Madhya Pradesh, .

Meharaj Singh (L/Nk.) Vs. State of U.P., .

Bhimappa Chandappa Hosamani and Others Vs. State of Karnataka, .

Ram Lal and Others Vs. Piara Lal Gobindram and Others, .

State of U.P. v. Ganga Ram and others, 2006 ACC (55) 698 (paragraph 6).

Nagarjit Ahir etc. Vs. State of Bihar, .

Muthu Naicker and Others Vs. State of Tamil Nadu, .

Radha Mohan Singh @ Lal Saheb and Others Vs. State of U.P., .

Bhudeo Mandal and Others Vs. State of Bihar, .

Pandurang Chandrakant Mhatre and Others Vs. State of Maharashtra, .

In reply, the learned AGA appearing for the State has submitted that the FIR is not ante-timed document. It was lodged promptly on the very same day of the incident. Non-mentioning of crime number etc. in the inquest report and in other police papers will not be fatal to the prosecution case especially when the eye account witnesses have supported the prosecution case. Oral - testimony also finds support with the medical evidence. Examination of all the witnesses cited in the charge-sheet is not essential. Date, time and place of occurrence is fully established from the prosecution evidence. Sufer, Shyam Awadh and deceased Ghuran were returning after participating in the panchayat. An altercation had taken place between Shyam Awadh and Baiju Singh regarding repayment of the advance given by Beni to Dinesh Chaubey and due to that reason present offence was committed by the appellants. Eye account witnesses have supported the prosecution case. There is no conflict between oral and medical evidence. Accused appellants have not put any specific question to the medical witness to explain the faecal matter found in the intestine of the deceased Ghuran. The prosecution succeeded in establishing the fact of convening panchayat, motive and also participation of the accused appellants in commission of crime. Contradictions, omissions, laches, improvements are of minor nature and do not go the root of the prosecution case and the same may be ignored. Evidences of PW-1, PW-2 and PW-3 on material points are consistent.

We have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence.

Before proceeding to discuss the submissions raised by the learned counsel for the parties, we may mention the findings of the trial court on material point in the impugned judgement and order, which are as under:

(1) There is nothing unusual that PW-3 Km. Urmila was medically examined on the next day of the incident. Medical evidence fully supports the testimony of PW-3.

(2) Prosecution has been able to establish that the deceased Ghuran was done to death by the appellants on the spot and deceased Suresh was also caused serious/grave injuries by the appellants, resultantly, he died during treatment.

(3) Time of occurrence is 10.00 a.m. and the place of occurrence is the same as was mentioned in the FIR. It was supported by the prosecution witnesses.

(4) Defence could not suggest any alternate place of occurrence as PW-13 Sub-Inspector A.S. Jafri has taken the bloodstained earth from the spot near Jolahwatar.

(5) There was no direct motive against the accused but both the parties had strained relation as is clear from the prosecution evidence.

(6) Present incident took place due to altercation occurred in the panchyat.

(7) FIR is not delayed document. There is compliance of Section 157 , Cr.P.C.

(8) Deceased Suresh had gone to Police Station concerned along with informant Bhaggal. He was interrogated and thereafter was sent for medical examination.

(9) There was no strong animosity between them to falsely implicate the accused in the present case.

(10) Sub-Inspector A.S. Jafri has explained the reason for not taking the bloodstained earth from all the three places at the spot.

(11) PW-1, PW-2 and PW-3 are natural and probable witnesses. Besides this fact that they are family members, they had seen the occurrence and are also injured witnesses.

(12) Non-examination of other witnesses cited in the FIR and charge-sheet does not make prosecution case unbelievable or improbable.

(13) The trial court did not rely upon the dying declaration recorded in the form of Section 161 , Cr.P.C..

(14) The Manner in which the marpeet took place, it was not possible for any witness to accurately collect/see as to which accused caused injuries to whom.

(15) Incised Wound could be caused with the use of spear.

(16) Contradictions, omissions, etc. are immaterial and are bound to occur in untutored statements.

(17) Accused appellants who were assigned gun, have also actively participated in commission of the crime.

After outlining the findings recorded by the trial court in the impugned judgment and order, we are proceeding to deal with the submissions advanced by the learned counsel for the parties.

Let us first take-up the submission that FIR was ante-timed.

In this matter, offence is said to have been committed on 24.12.1979 at 10.00 a.m. at village Gauri. FIR is registered at police station concerned on the same day at 2.00 p.m.. Distance between place of occurrence and the police station concerned is about 7 miles. Informant is PW-1 Bhaggal, who claims himself to be an eye account witness. In the written report (Ext. ka-1), it was mentioned that dead body of the deceased was lying on the spot, two injured Sufer and Shyam Awadh were sent for medical treatment to Saidpur Govt. Hospital, and the informant proceeded to Police Station to lodge the FIR. It was also mentioned that deceased Suresh also received injuries in the said incident. It is not clear from the written report as to whether deceased Suresh had also gone to police station concerned along with the informant or not but in the GD. prepared at the same time, presence of Suresh was shown. After registration of case, statement of informant and injured Suresh were Recorded. Suresh, on the basis of chitdii majrubi, was sent for medical examination and during course of treatment on 28.12.1979 he died. It is also the prosecution case that after the incident, informant got prepared the written report (Ext. kat-1) with the help of scribe Bindra Chaubey at the village concerned itself.

Referring to the policy papers prepared at the time of preparation of inquest report of deceased Ghuran, learned counsel for the appellants has submitted that FIR. was not in existence at the time mentioned in the chik. It has also been submitted that non-mentioning of crime number, name of the accused etc. in the inquest report creates suspicion that FIR was not registered at the time mentioned in the chik report. It was further submitted that deceased Suresh had not received any injuries in the said incident but was beaten by some other person at some other place and for this reason his name does not find place in the written report. It was next submitted that PW-3 Km. Urmila had admitted that inquest report was prepared at the door of the deceased. Referring last line of the written report, it was submitted that the said written report was prepared at the police station concerned in consultation with the police wherein concocted date and time of the lodging of FIR was mentioned.

To analyse the submissions made by the learned counsel for the parties, we have closely scrutinized the prosecution case.

It is true that the name of deceased Suresh was not shown in the written report (Ext. ka-1) to the effect that he accompanied with the informant Bhaggal but the GD., prepared at the time of registration of the case, clearly indicates that deceased Suresh was present at the police station concerned at the time of registration of the case. Not only this, the presence of Suresh at the police station concerned at the relevant time also finds support from the fact that he was interrogated by the Investigating Officer along with the informant Bhaggal at the police station concerned. Injury report prepared in respect of deceased Suresh also indicates that he was examined at Govt. Hospital, Saidpur on the basis of chitthi majrubi given by police station concerned.

So far as the argument of non-mentioning of the crime number, sections, name of the accused and other particulars in the inquest report is concerned, the same is not required under law. Inquest report is prepared under the provisions of Section 174 , Cr.P.C. and as per the provisions of said Section, there is no such requirement as submitted by the learned counsel for the appellants. In support of this submission, learned counsel for the appellants has placed reliance on the decision of Meharaj Singh (L/Nk.) Vs. State of U.P., . In this case, the Apex Court has held that FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The objection of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the role played by them, weapons, if any, used, as also the names of the eye-witnesses, if any. It has further been held that to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case. The second external check equally important is the sending of the copy of the FIR alongwith the dead body and its reference in the inquest report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations.

In the context of the submission raised by the learned counsel for the appellants, the decision of the Hon''ble Supreme Court in the case of Sri Sambhu Das @ Bijoy Das and Another Vs. State of Assam, is also relevant. Relevant paragraphs of the said decision are quoted as under

"(17) The Inquest Report is prepared under Section 174 , Cr.P.C. The object of the inquest proceedings is to ascertain whether a person has died under unnatural circumstances or an unnatural death and if so, what the cause of death is? The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted, is foreign to the ambit and scope of the proceedings under Section 174 , Cr.P.C. The names of the assailants and the manner of assault are not required to be mentioned in the inquest report. The purpose of preparing the inquest report is for making a note in regard to identification marks of the accused. The inquest report is not a substantive evidence. Mention of the name of the accused and eye-witness in the inquest report is not necessary. Due to non-mentioning of the name of the accused in the inquest report, it cannot be inferred that FIR was not in existence at the time of inquest proceedings. Inquest report and post mortem report cannot be termed to be substantive evidence and any discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance which would warrant a benefit to the accused and the resultant dismissal of the prosecution case. The contents of the inquest report cannot be termed as evidence, but they can be looked into to test the veracity of the witnesses. When an officer-in-charge of Police Station receives information that a person had committed suicide or has been killed or died under suspicious circumstances, he shall inform the matter to the nearest Magistrate to hold Inquest. A criminal case is registered on the basis of information and investigation is commenced under Section 157 of Cr.P.C. and the information is recorded under Section 154 of Cr.P.C. and, thereafter, the inquest is held under Section 174 , Cr.P.C. This Court, in the case of Pedda Narayana and Others Vs. State of Andhra Pradesh, , has indicated that the proceedings under Section 174 , Cr.P.C. have limited scope. The object of the proceedings is merely to ascertain whether a person has died in suspicious circumstances or an unnatural death and if so, what is the apparent cause of the death. The question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances, he was assaulted is foreign to the ambit and scope proceeding under Section 174 . Neidier in practice nor in law was it necessary for the Police to mention these details in the Inquest Report. In George and Others Vs. State of Kerala and Another, , it has been held that the Investigating Office is not obliged to investigate, at the stage of Inquest, or to ascertain as to who were the assailants. In Suresh Rai and Others Vs. State of Bihar, , it has been held that under Section 174 read with Section 178 of Cr.P.C., Inquest Report is prepared by the Investigating Officer to find out prima facie the nature of injuries and the possible weapon used in causing those injuries as also possible cause of death.

(18) This Court has consistently held that Inquest Report cannot be treated as substantive evidence but may be utilized for contradicting the witnesses of the Inquest. Section 175 , Cr.P.C. provides that a Police Officer proceeding under Section 174 may, by an order in writing, summon two or more persons for the purpose of the said investigation. The provision of Sections 174 and 175 afford a complete Code in itself for the purpose of inquiries in cases of accidental or suspicious deaths.

The aim and object of Section 174 , Cr.P.C. was also illustrated by the Hon''ble Supreme Court in Amar Singh Vs. Balwinder Singh and Others, and Radha Mohan Singh @ Lal Saheb and Others Vs. State of U.P., .

In the matter of Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, , a three Judges Bench of Hon''ble Supreme Court has rejected the contention raised on behalf of the appellant that the evidence of eye-witnesses could not be relied upon as their names did not figure in the inquest report prepared at the earliest point of time.

If the law laid down in the above mentioned cases is taken into consideration with the fact and evidence of the present case, it is clear that in the inquest report of Ghuran, crime number and details of offences, names of the accused persons have not been shown. Similarly, in Form No. 13 and the letter sent to the Chief Medical Officer, these details have also not been mentioned, but from a perusal of chik FIR, it is evident that special report was sent on 25.12.1979. From the statement of the informant, it is also clear and convincing that he got prepared the written report at his door before proceeding to the concerned police station. Due to variation in the Subsequent statement, it cannot be inferred the written report (Ext. ka-1) was prepared at the concerned police station. Last line of the-FIR is also not indicative of this fact that the written report was prepared at the police station concerned. Non-examination of scribe Bindra Chaubey is also immaterial, as PW-1 Bhaggal has proved the written report. The other, witnesses examined by the prosecution have also supported this fact, and even police witness, who has registered the case at the police station concerned, has clearly and consistently supported this fact that deceased Suresh had come at the police station concerned along with the informant Bhaggal and he was interrogated and sent for medical examination. It is also pertinent to mention here that if there is minor variation and contradiction in the statements of prosecution witnesses, then also on the basis of the foregoing discussions, it cannot be said that the FIR was not registered at the police station concerned at the time mentioned in the chik report. Conduct of the police witnesses for taking the body of the deceased Ghuran to the mortuary and taking the police papers by other constable is also not indicative that FIR was not in existence at the time stated in the chik report.

In the circumstances mentioned above, we are of the view that the FIR in this case was not delayed and the decision relied upon by the appellants in Meharaj Singh (L/Nk.) Vs. State of U.P., , cannot help the appellants. The finding recorded by the trial court on this point is based on evidence and settled legal position and the same is not required to be interfered with by this Court

So far as the submission regarding place of occurrence is concerned, the Investigating Officer has taken bloodstained earth and plain earth from the place of occurrence near Julahwatar. During course of examination, the prosecution witnesses have admitted that blood was present on the earth, cot, cloth and also at the door of the injured but the Investigating Officer has not taken the same. PW-3 Km. Urmila has also admitted that the dead body of the deceased Ghuran had been kept at his door and inquest report was prepared at that place. Referring this argument, learned counsel for the appellants has submitted that the prosecution evidence on the point of place of occurrence is self-contradictory.

On close scrutiny of the statements of PW-3, police witnesses and the inquest report of deceased Ghuran, it is clear that the inquest report was prepared at Julahwatar. It appears that when the dead body was handed over to the concerned constable to carry the same to mortuary, due to fog and non-availability of transport to carry the dead body, the constables were waiting for police jeep. It is possible that they would have kept the dead body at the door of the deceased during the said period. The police witnesses have stated that due to fog they were separated/missed on the way, therefore, the constable, who had kept the police papers, reached the mortuary alone. On close scrutiny of the statements of PW-1, PW-2 and PW-3, it is evident that all these three witnesses have clearly stated that Shyam Awadh, Ghuran and Sufer were returning after participating in the panchayat and the present incident happened at the place of occurrence i.e. Julahwatar. It is also evident from the statement of prosecution witnesses that blood spread over the three places on the spot (place of incident) but the Investigating Officer, who prepared the inquest report, had taken the bloodstained earth from only one spot. A perusal of the record shows that the Investigating Officer while preparing the site plan has not shown correct description of directions but this discrepancy was satisfactorily explained by the Investigating Officer. DW-1 Jainath Pathak, who was the Lekhpal of the village concerned, gave topographical details of the place of occurrence and stated that in the revenue record mere was no entry in the name of graveyard. Although it has come in the evidence that dead bodies of Muslims were buried near the place of occurrence. In such a situation, if revenue record does not show any entry regarding graveyard, it cannot be said that oral testimony of the eye account witnesses on this point is false. There are some variations in the statement of said eye account witnesses on the point of distance, direction and path between the house of appellants and also of the school. There is also some variation in the statement about the distance between the house of Doodhnath (the place of panchayat) and the houses of deceased persons but the statement of the eye account witnesses that a path goes from the house of Doodhnath towards house of deceased persons cannot be disbelieved as this fact has also been admitted by the DW-1. The houses of the accused persons are situated towards one side of the said path near the said Bhita. The place of incident, which is termed as ''Julahwatar'' is also situated on the above path. The incident is said to have taken place at the place shown in the FIR. The finding of the trial court that prosecution was able to establish the place of incident beyond reasonable doubt does not require interference by this Court. From the statement of the prosecution witnesses as well as from the statement of DW-1, place of incident is established at Julahwatar and the path, through which the deceased Ghuran along with his fellows were returning, also passes through the land belonging to Julahwatar.

So far as the submission regarding laches in investigation on the part of the Investigating Officer is concerned, it is well settled proposition of law that any inconsistency or discrepancy occurred in the investigation or laches on the part of the Investigating Officer does not affect the veracity of the statement of reliable prosecution witnesses until and unless such discrepancies are of such nature that the entire prosecution story is collapsed. In the present case, the discrepancies or laches on the part of the Investigating Officer are not of such nature which may collapse the entire prosecution story. Hence, the submission made by the learned counsel for the appellants in this regard cannot be accepted and the finding recorded by the trial court on this point is not liable to be interfered with.

Let us now take up the submissions of the learned counsel for the appellants that (i) injuries found on the body of the injured and the deceased could not be caused with the use of the weapons assigned to the accused appellants (ii) deceased Suresh did not receive injury in the said incident because nothing was mentioned in the written report (Ext. ka-1) regarding the injuries received by him, (iii) in juries shown on the body of Km. Urmila are superficial, and (iv) medical evidence in the present matter does not support the prosecution case.

PW-2 Shyam Awadh, PW-3 Km. Urmila and one Sufer are said to be injured in the said incident. Injuries on the body of Km. Urmila, examined on 25.12.1979, are in the nature of bruises and in the opinion of Doctor, all the injuries were simple and caused by blunt object and the time is one day old. PW-2 Shyam Awadh has received six incised wounds, one lacerated wound and one abrasion and in the opinion of doctor, all the injuries were caused by sharp edged weapon except injury Nos. 6 and 7, which are lacerated and abrasion and are said to be caused with blunt object. Similarly, one bruise injury is said to be caused to injured Sufer by blunt object. Deceased Suresh had received five lacerated wounds, five injuries in the nature of bruise, one abrasion and in the opinion of doctor, all the injuries were caused by blunt object. Deceased Ghuran was done to death on the spot. In the post-mortem, three abraded contusions, one contused swelling, one overlapping contusion, one punctured wound and one abrasion were found on his body.

Appellants'' case is that the injuries on the body of the injured and deceased could not be caused with the use of weapons assigned to them and the injuries of Km. Urmila (PW-3) are superficial injuries which can be manufactured. Further, injuries found on the body of injured Shyam Awadh are incised wounds, which could only be caused by sharp edged weapon like gandasa. Weapon gandasa was not assigned to any of the accused appellants. Name of deceased Suresh does not find place in the FIR and injuries found on his body were caused elsewhere and not in the present incident. Only one punctured wound was found on the body of deceased Ghuran, hence, medical evidence in the present matter does not support the prosecution case.

We have considered the aforesaid submissions.

The trial court has opined that accused persons were armed with weapons viz., gun, spear and lathi. Though spear is a sharp edged pointed weapon yet an incised wound could also be caused with a spear. Lacerated wound, abrasion and contused swelling could be caused by a lathi as has been assigned to some of the accused appellants. While forming the above opinion, the trial court has also observed that the doctor examining the injured was clearly mistaken in his view. Incised wound is always possible with a spear. In this regard, the trial court has placed reliance on the law laid down in the case of Sone Lal and Others Vs. The State of U.P., .

Akhough it is true that witnesses examined on behalf of the prosecution have accepted that spear was being used as spear yet, in our opinion, the witnesses said to-be present on the spot, were not in a position to observe as to which of the accused was causing injuries in what manner and style. It is also true that spear had pointed as well as sharp edge and therefore it caused incised as well as stab wound. If the sharp edged portion of spear strikes with the body of a person, certainly an incised wound would be caused.

On close scrutiny of the injury sheets of the injured and deceased, we are of the considered opinion that medical evidence is consistent with the oral evidence and fully supports the prosecution case. The submissions raised by the learned counsel for the appellants in this regard are not acceptable. The finding recorded by the trial court on this point is not illegal or incorrect and the same is not liable to be interfered with.

It is the prosecution case that after hearing the noise, deceased Suresh and injured Km. Urmila (PW-3) had reached the spot. Accused appellants had also caused injuries to them. Injured Shyam Awadh and Sufer were sent by the informant Bhaggal to the PHC concerned for treatment but deceased Suresh accompanied him to police station to lodge the FIR. As the presence of deceased Suresh at police station concerned has already been dealt with in detail in the earlier part of this judgment, we need not dwell further on this aspect. Hence, it cannot be said that injuries found on his body were caused elsewhere and not in the present incident.

Injuries on the body of Km. Urmila could not be said to be superficial in nature as there is cogent and convincing evidence that she reached the spot after hearing hue and cry. On sustaining the injuries caused by Ashok Singh and Baiju Singh, she fell down on the ground. Since the injuries were not grievous in nature, she was not sent for medical examination on the same day but when this fact came in the knowledge of Investigating Officer, he sent her next day for medical examination. The doctor, who examined her, has also not belied this fact that injuries found on the body of Km. Urmila could not be caused in the said incident Thus, the submission made by learned counsel for the appellants in this regard has no force, and the same is not liable to be accepted.

Now we take-up the submission of the learned counsel for the appellants that PW-3 Km. Urmila was a child witness, she was not an eye-witness because she reached the spot after the occurrence.

The Apex Court in the case of Rameshwar Vs. The State of Rajasthan, , examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise. It has been further held that:

".....It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be garnered from the circumstances when there is no formal certificate...."

In Mangoo and another Vs. State of Madhya Pradesh, , the Hon''ble Supreme Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

In Panchhi and others Vs. State of UP, , the Hon''ble Supreme Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."

In Nivrutti Pandurang Kokate and Others Vs. State of Maharashtra, , the Apex Court dealing with the child witness has observed as under:

"The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."

In Himmat Sukhadeo Wahurwagh and Others Vs. State of Maharashtra, , the Apex Court held that the evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on an oath and the import of the questions that were being put to him.

In State of U.P. Vs. Krishna Master and Others, , the Hon''ble Supreme Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.

In the present matter, although at the time of deposition before the Court, PW-3 Km. Urmila was aged about 14-15 years yet she had given a rational answers to the questions put to her by the defence. Although questions were not asked to check her capability for making deposition yet the answers to the questions put to her by the defence show her capability itself. Therefore, testimony of this witness, who is an eye witness, cannot be disbelieved. Hence the submission made by the learned counsel for the appellants in this regard cannot be accepted.

The trial court has not placed reliance on the statement of deceased Suresh recorded under Section 161 , Cr.P.C. as dying declaration on the ground that at the time of recording of statement under Section 161 , Cr.P.C., PW-1 Bhaggal was also said to be present. Learned counsel for the appellants has submitted that the statement recorded under Section 161 , Cr.P.C. is of no value if the maker of the statement subsequently dies. This submission cannot be accepted.

Dying declaration made orally in the presence of any person maybe proved in court by the oral evidence of that person. The declaration becomes admissible, if the declarant subsequently dies. If he survives, it will be useful, if made before a Magistrate, or any one other than a Police Officer, to corroborate his oral evidence as a witness in court.

Further, the Hon''ble Supreme Court in the case of Sri Bhagwan Vs. State of U.P., concurred with the view taken by the trial court that the statement made by the deceased before the Investigating Officer can be treated as a dying declaration under Section 32(1) of the Evidence Act. Their Lordships have further held that the law empowers the prosecution to rely on such statement by treating it as a dying declaration. Relevant paragraphs 20 and 21 of the said journal are reproduced below:

"20. Going by Section 32(1) , Evidence Act, it is quite clear that such statement would be relevant even if the person who made the statement was or was not at the time when he made it was under the expectation of death. Having regard to the extraordinary credence attached to such statement fall under Section 32(1) of the Indian Evidence Act, time and again this Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying declaration.

As far as the implication of 162(2) of Cr.P.C. is concerned, as a proposition of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior counsel for the respondent, once the said statement though recorded under Section 161 , Cr.P.C. assumes the character of dying declaration within the four corners of Section 32(1) of Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a statement though was once recorded under Section 161 , Cr.P.C. The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such."

Arguments have been advanced that there is no motive to execute the crime in question, and motive suggested is too trivial to impel mem to commit such an offence.

This Court at this juncture takes note of judgment in the case of State of Himachal Pradesh Vs. Jeet Singh, wherein Apex Court has proceeded to mention that no doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed, if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire swelled in the mind of the offender to such a degree to impel him to commit the offence cannot be construed to be a fatal weakness of the prosecution. It is an impossibility for the prosecution to unravel the full dimension of mental disposition of an offender towards the person whom he offended. Relevant paragraph 33 is reproduced below:--

"33. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. In this context we may extract the observations made by a two Judge Bench of this Court (Dr. A.S. Anand, J. as the learned Chief Justice then was and Thomas, J.) in Nathuni Yadav and others Vs. State of Bihar and another, .

"17. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive.

It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R.V. Parlmer (Shourthand Report at p. 308 CCC May 1856) thus:

''But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.'' Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved.

After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition; existed in the mind of the assailant."

Time and again it has been mentioned that absence of motive does not weaken the prosecution case; though existence of the same may strengthen the case. Absence of motive is of no consequence and same pales into insignificance when direct evidence establishes the crime as often motive is locked in the heart of offender. Motive looses its significance in case of direct evidence being there in crime, has been held by Apex Court in the case of Lokesh Shivakumar Vs. State of Karnataka, . Motive may be known to assassin and no one else may know what gave birth to such evil thought in his mind as per the Apex Court in the case of Munish Mubar Vs. State of Haryana, .

In the present case, clear cut motive has been described that has impelled the appellants to execute the crime in question. The FIR itself indicates that while at the door of Doodhnath panchayat regarding repayment of the advance given by one Beni to Dinesh Chaubey was going-on, an altercation took place between Shyam Awadh and Baiju Singh. Baiju Singh told Shyam Awadh that the money advanced to Dinesh Chaubey would be recovered from him and Baiju Singh also threatened Shyam Awadh with dire consequences. When Ghuran, Shyam Awadh and Sufer were returning from panchayat, the incident took place. Learned counsel for the appellants have submitted that as these facts were not proved by the prosecution, the origin and genesis of the occurrence becomes doubtful. The Trial Court has opined that PW-2 Shyam Awadh, who was present in the panchayat, has clearly supported this fact in the deposition made before the Court, therefore, the motive part is established by the prosecution.

It may also be noted that a fact could be proved by the testimony, of only a single witness. Although PW-1 and PW-3 have supported this fact yet their statements on this point is based on here-say evidence. They had not participated in the panchayat. In our considered view, theory of altercation in the panchayat supported by Shyam Awadh (PW-2) was the only motive to commit the present offence. So far as the submission of non-examination of Doodhnath and, other persons present in the panchayat is concerned, the same will not render the testimony of PW-2 unbelievable. It is suffice to say that if a witness examined in the court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were, not examined. Further, it is also settled proposition of law that it is not the matter of quantity of evidence but the quality of evidence produced by the prosecution. In this regard, we may make a reference to the case law reported in Food Inspector Vs. G. Satyanarayana, , wherein the Hon''ble Supreme Court has held that it is not the number of witnesses but it is the quality of evidence which is required to be taken note of by the courts for ascertaining the truth of the allegations made against the accused. Section 134 of The Evidence Act provides that no particular number of witnesses is required for proof of any fact. The witnesses of fact produced on behalf of the prosecution, are trustworthy and well reliable and merely because no independent witness was examined, the evidence of witnesses of fact cannot be discarded.

Having perused the entire record in consonance with the submissions made by the learned counsel for the appellants and also with the findings recorded by the trial court, we find no ground to interfere with the findings recorded by the trial court as the prosecution case rests on the testimony of eye witnesses.

So far as the submission that a witness is a close relative or is an interested witness is concerned, it is settled legal position that merely because the witnesses were closely related to the deceased, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that affects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. The defence could not elicit anything from the testimony of PW-1 as to why he had falsely nominated the accused persons. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence.

As far as the submission regarding presence of eye account witnesses on the spot is concerned, three persons, namely, Ghuran (deceased), Shyam Awadh (injured) and Sufer were returning from panchayat. It was about 10.00 a.m. Accused appellants are said to have attacked upon them with the arms assigned to them. PW-2 Shyam Awadh and Sufer had received injuries in the said incident. They were medically examined on the same day. PW-3 Km. Urmila along with deceased Suresh had reached the spot after hearing the noise. Suresh also received injuries in the said incident and subsequently during treatment he died. Hue and cry on the place of occurrence could easily be heard from their houses. There was nothing abnormal in the conduct of PW-3. She was also beaten by the accused appellants and this fact was supported by PW-1 and PW-2. Doctor, who examined this witness, has also stated that injuries found on her body could be caused on the date and time of the incident. PW-1 was present on the spot and saw the incident but he did not receive injury. He has categorically supported the prosecution case. Fact stated by this witness also finds support from the medical evidence. PW-2 Shyam Awadh is an injured witness. This witness was medically examined voluntarily and the medical evidence clearly supports that the injuries found on his body which could be caused on the date and time of the incident.

Contradictions in the statement of eye account witnesses on the point of use of weapons by the appellants have occurred and they have not given any clear detail about the number of blows caused by the accused appellants but looking to the manner in which the offence was committed, it is not expected from any witness to give each and every detail of the overt act of the accused.

It is settled legal position that a witness is not like a tape record when he is giving evidence more than a year later about what happened a year earlier his memory may not serve him completely right. He may not be able to report the exact words used on the occasion, or all the words.

In the circumstances, we are of the view that the contradictions occurred in the statement of eye account witnesses on the point of number of blows, manner and use of weapon, role of appellants and assignment of place to the appellants in causing injuries are bound to occur in their statements as they were examined after a gap of 1 1/2 years. Further, every person, who witnesses a murder reacts in his own way. Some are stunned, some become speechless and some stand rooted to the spot. Some become hysteric and start walling, some start shouting for help. Those others who run away to keep themselves as far removed from the spot as possible are not necessary incredible yet others rush to the rescue of the victim even going to the extent of counter attacking the assailants. Hence, we are of the opinion that the finding of the trial court regarding presence of the eye account witnesses on the spot is based on the evidence available on record. There is no illegality and infirmity in the said finding and the same does not require interference. The submissions made by the learned counsel for the appellants in this regard cannot be accepted.

It has been submitted by the learned counsel for the appellants that PW-1 Bhaggal, PW-2 Shyam Awadh and PW-3 Km. Urmila, are unreliable witnesses, therefore, conviction cannot be based on their testimony without corroborating the same with other evidences.

It is true that some discrepancies and contradictions have occurred in the statement of eye account witnesses, but the same do not place these witnesses in the category of ''unreliable witnesses''. The fact of panchayat and the incident took place at Julahwatar on the date and time mentioned in the chik report has been fully supported by the testimony of PW-1 informant Bhaggal, PW-2 ShyamAwadh and PW-3 Km. Urmila. Medical evidence also supports the same. On the point of date, time and place of occurrence, testimony of these witnesses is clear and consistent and on the point under consideration, in our view, the testimony of these witnesses is also found consistent and they cannot be termed as ''unreliable'' witnesses. Hence, the submission made in this regard is not acceptable.

As far as the participation of the accused appellants in commission of the present offence is concerned, the injuries found on the body of injured and deceased could have been caused with the use of lathi and spear and this point hits already been dealt with by us in the earlier part of this judgment. On the point of use of weapon assigned to the appellants the testimony of eye account witnesses are also clear and consistent, therefore, in our view, on this point also the evidence of these witnesses is clear and consistent. Merely on the basis of some minor discrepancies in the statement, these witnesses cannot be termed as ''infirm witness''. As on material points, these witnesses are reliable witness, they cannot be branded as unreliable or infirm witness. The contention of the learned counsel for the appellants that Injured witness guarantees his presence but not his truthfulness is true but in the present matter not only the presence of injured witnesses was found established but also their statement on material point are truthful and reliable. The case laws relied upon by the learned counsel for the appellants in this regard cannot extend any help to them. Hence, the submission made by the counsel for the appellants in this regard is not accepted.

It is the case of the prosecution that accused appellants Baiju Singh, Mahendra Singh, Ram Awadh Singh (since died), Kesho Singh (since died), Musafir Singh, Sheomurat Singh (since died), Harihar Singh (since died), Ashok Singh and Ravindra Singh forming an unlawful assembly armed with deadly weapons attacked upon Ghuran, Sufer and Shyam Awadh. When, after hearing the noise, Suresh and Km. Urmila reached the spot to save them, they also attacked them. Accused Harihar Singh (since died) and Ram Awadh Singh (since died) were armed with gun and accused Sheomurat Singh (since died) was armed with lathi. These three appellants, who have died during pendency of this appeal, were assigned the role of exhortation. No overt act regarding causing injuries to any of the, injured or deceased was assigned to them. They are dead and appeal in their behalf has already been abated. Similarly, Kesho Singh (since died), who was armed with lathi has also died during pendency of this appeal and the appeal on his behalf has also been abated. Therefore, we are confining ourselves only to the role assigned to the appellants Ravindera Singh, Musafir Singh, Ashok Singh, Mahendra Singh and Baiju Singh. Appellants Ravindra Singh, Ashok Singh and Mahendra Singh were armed with spear, appellants Baiju Singh and Musafir Singh were armed with lathi.

Testimony of PW-1, PW-2 and PW-3 clearly shows that all the above-mentioned five appellants have actively participated in the commission of the present offence in furtherance of common object of unlawful assembly. The injuries found on the body of deceased and the injured persons also support participation of the appellants in commission of the present offence. The finding of the trial, court that appellants Ravindra Singh, Musafir Singh, Mahendra Singh, Baiju Singh and Ashok Singh have actively participated in commission of the present offence, cannot be said to be illegal or perverse. Common object of unlawful assembly to commit the present offence is also established beyond reasonable doubt from the testimony of eye account witnesses. Case laws relied upon by the learned counsel for the appellants to the effect that provisions of Sections 141 and 149 , IPC are not attracted in the present matter, cannot extend any help to the appellants, as the same are not applicable to the facts of the present case. All the accused appellants armed with deadly weapon had reached the spot and in furtherance of common object of unlawful assembly they had caused injuries to the deceased and injured persons. Ingredients to attract Section 302 read with Section 149 , IPC, Section 307 read with Section 149 , IPC and Section 323 read with Section 149 , IPC and also Section 147 IPC are clearly established in the present matter. The opinion of the trial court does not suffer from illegality or infirmity. All the accused appellants were rightly held guilty taking recourse of the provisions of Section 149 , IPC on the ground of joint liability. The conclusion taken by the trial court regarding conviction and sentence of the accused appellants is also in accordance with law and the evidence available on record.

So far as the decisions cited by the learned counsel for the appellants are concerned, after a careful perusal of the same we are of the firm view that none of these judgments are helpful to the appellants because the facts of all these cases cited by learned counsel for appellants are entirely different from the facts of the present case. Every criminal case stands on a different footing and therefore the verdict of a criminal case cannot be blindly followed as a precedent in another case without looking into the facts peculiar to each case.

Considering the entire aspects of the matter and looking to the circumstances, under which the present offence has been committed, we are of the view that the impugned judgment and order passed by the trial court is well thought and well discussed and the trial court has rightly held that the prosecution has succeeded to prove the guilt of the accused appellants beyond reasonable doubt. As such, the impugned judgment and order passed by the trial court is liable to be upheld and the appeal having no force is liable to be dismissed.

Accordingly the present Criminal Appeal is dismissed.

The conviction and sentence imposed upon the accused appellants Ravindra Singh, Musafir Singh, Mahendra Singh, Baiju Singh and Ashok Singh vide impugned judgment and order dated 27.3.1982 is hereby confirmed.

The accused appellants Ravindra Singh, Musafir Singh, Mahendra Singh, Baiju Singh and Ashok Singh are on bail. Their personal and surety bonds are cancelled and they are directed to surrender before the Chief Judicial Magistrate concerned forthwith, who shall take them into custody and send them in jail for serving out the remaining sentence imposed upon them by the trial court. In case they fail to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against them in this regard. Copy of this judgment along with lower court record be sent forthwith to the Sessions Judge, Ghazipur for compliance.