Jagannath and Others vs State

Akhtar Husain Khan, J—Accused appellants Jagannath, Amar Nath, and Chotu alias Chutku have filed this appeal from jail under section 374(2), Cr.P.C. against judgement and order dated 16.9.1982 passed by learned 1st Additional District and Sessions Judge, Banda in S.T. No. 58 of 1981 (State v. Jagannath and three others), under sections 302/323/34, I.P.C., Police Station Girwan, District Banda, whereby learned 1st Additional District and Sessions Judge, Banda has convicted accused appellants Jagannath, Amar Nath, and Chotu alias Chutku for offences punishable under section 302, I.P.C. read with section 34, I.P.C. and section 323 I.P.C. read with section 34, I.P.C. and has sentenced each of them to undergo life imprisonment for offence under section 302, I.P.C. read with section 34, I.P.C. and to undergo rigorous imprisonment for six months for offence under section 323, I.P.C. read with section 34, I.P.C. Learned Additional Session Judge has directed that both the sentences shall run concurrently. Accused appellant Chotu alias Chutku has died during pendency of appeal. Appeal stands abated in respect of him.

Shri. Amit Mishra appeared for the accused appellants and Shri. Rajeev Gupta, learned A.GA. appeared for State respondent.

We have heard learned counsel for the parties and gone through the record.

Relevant fact for determination of this appeal is that Crime No. 173, under sections 302 and 307 I.P.C. was registered in Police Station Girwan, District Banda on report of complainant Chanda against accused Jagannath, Amar Nath, Chotu alias Chutku and Ram Kumar on 28.12.1980 at 8.45 a.m.

According to first information report in short prosecution story is that about one year ago complainant''s maternal uncle Ratti and his son Lallu had been murdered. Complainant Chanda and his brother Bhauna had been accused in said murder case of their maternal uncle Ratti and his son Lallu and case was pending against them. Due to which accused party had enmity with complainant Chanda and his brother Bhauna. In above affairs of fact on 28.12.1980 at 7.00 a.m. when Bhauna brother of complainant Chanda went towards hills to ease himself, accused Jagannath son of aforesaid Ratti armed with barchhi, accused Amar Nath son of aforesaid Ratti armed with lathi, accused Chutku son of Binda armed with kulhari and accused Ram Kumar son of Bharose armed with tamancha (country made pistol) went behind Bhauna. Seeing suspected movement of aforesaid accused, complainant Chanda, his mother Sheopatiya and Sawnaliya wife of Bhauna raised alarm and rushed towards Bhauna to caution him but said accused reached near Bhauna earlier and assaulted him to death by barchhi, lathi and axe (Kulhari). When mother of complainant Sheopatiya reached there said accused assaulted her also to death. They assaulted Sawanaliya wife of Bhauna also. Complainant ran away and climbed towards hill, whereupon Raj Kumar made two fires at him but said two fires could not touch complainant. Having heard noised Mullu Domar, Bahora Kumhar and Harilal Pasi etc all residents of village of complainant, who were present near place of occurrence saw occurrence and challenged aforesaid assailants. Bhauna brother of complainant and Shiopatiya mother of complainant died on spot. Thereafter leaving dead bodies of his brother Bhauna and mother of Sheopatiya on spot in supervision of village chaukidar, complainant Chanda went to police Station Girwan, District Banda with first information report Exhibit Ka.1 and presented the same in police station, whereupon aforesaid crime was registered at police Station Girwan, District Banda against aforesaid accused.

After registration of aforesaid crime investigation was started by police. Inquest reports of aforesaid two deceased were prepared and dead bodies of both deceased were sent for post-mortem in sealed cover after having completed necessary formalities.

Injured Sawanaliya wife of Bhauna was sent to District Hospital, Banda for medical examination where her medical examination was conducted by P.W.7 Dr. A.K. Agrawal on the same day at 3.00 p.m. and injury report Exhibit Ka.6 was prepared by him.

After having completed investigation in accordance with law police submitted charge-sheet against accused Jagannath, Amar Nath, Choru alias Chutku and Ram Kumar for offences under sections 302, 307, 323, I.P.C. whereupon concerned Magistrate took cognizance and after compliance of section 207 Cr.P.C. committed the case to the court of session for trial of all accused. Thereafter S.T. No. 58 of 1981 (State v. Jagannath and three others), under sections 302/323/34, I.P.C, Police Station Girwan, District Banda was registered in session court of district Banda. Later on said session trial was transferred to the court of 1st Additional Sessions Judge, Banda, who framed charges against all accused for offences punishable under section 302, I.P.C. read with section 34 I.P.C. and section 323, I.P.C. read with section 34, I.P.C.

All accused pleaded not guilty and claimed to be tried.

Prosecution examined P.W. 1 complainant Chanda, P.W.2 Smt. Sawnaliya, P.W.3 Bhagauti, P.W.4 Constable 124 Ramanand, P.W.5 Constable 150 Ahsan Ahmad, P.W.6 Head Constable Kaptan Singh, P.W. 7 Dr. A.K. Agarwal and P.W.8 Investigating Officer S.I. Kamta Singh.

After prosecution evidence, statements of all accused were recorded under section 313, Cr.P.C. All the accused stated that they have been falsely implicated due to animosity. Accused Amar Nath has stated in his statement under section 313 Cr.P.C. that he had moved complaint against police of Police Station Girwan, District Banda regarding murder case of his father and brother, whereupon then S.H.O. had been suspended. Therefore, police of Police Station Girwan, District Banda was inimical to them and has implicated them falsely. Accused Amar Nath and Jagan Nath have stated in their statements under section 313 Cr.P.C. that they had left village after murder of their father and brother and have been residing in Allahabad.

D.W.1 R.S. Saraswat was examined on behalf of accused as defence witness.

Thereafter learned 1st Additional Sessions Judge, Banda heard the arguments of the parties and passed impugned judgment and order whereby he has convicted and sentenced accused appellants as mentioned above. But he has acquitted co-accused Ram Kumar from all charges levelled against him.

No appeal is reported to have been filed against acquittal of co-accused Ram Kumar by State.

Learned counsel for accused appellants contended that impugned judgment and order passed by trial court is against evidence as well as against law.

Learned counsel for accused appellants contended that F.I.R. is ante-time and whole story of prosecution is false and concocted.

Learned counsel for accused appellants contended that P.W.I complainant Chanda, P.W.2 Smt. Sawnaliya and P.W.3 Bhagauti are all family members of deceased Bhauna and Smt. Sheopatiya and are inimical to accused appellants. Their presence at the time of occurrence is highly doubtful. Their statements are full of contradictions and no article or weapon is alleged to have been recovered either from the possession or at the pointing out of accused appellants.

Learned counsel for accused appellants contended that previous S.H.O. Police Station Girwan had been suspended on the complaint of accused Amar Nath regarding murder case of his father and brother, due to which police of Police Station Girwan had enmity with accused appellants and has made a false and concocted case with aid of complainant Chanda.

Learned counsel for accused appellants contended that injuries of P.W.2 Smt. Sawnaliya are superficial and might have been prepared for strengthening the case of prosecution as it is apparent from statement of P.W.7 Dr. A.K. Agarwal.

Learned counsel for the accused appellants prayed that appeal should be allowed and both accused appellants should be acquitted from all charges levelled against them.

Learned A.G.A. contended that the conviction recorded by trial court is in accordance with evidence and law. Sentences awarded by trial court are also not excessive.

Learned A.G.A. contended that P.W.I complainant Chanda, P.W.2 Smt. Sawnaliya and P.W.3 Bhagauti are natural witnesses of occurrence. P.W.2 Smt. Sawnaliya is injured also. Their presence at the time and place of occurrence cannot be denied.

Learned A.G.A. contended that there is no material contradiction in statements of witnesses to disbelieve their testimonies.

Learned A.GA. contended that evidence on record is sufficient to hold accused appellants guilty for offences punishable under section 302, I.P.C. read with section 34, I.P.C. as well as section 323, I.P.C. read with section 34, I.P.C.

Learned A.GA. prayed that appeal filed by the accused appellants should be dismissed.

We have considered the contentions raised by the parties and have gone through whole evidence on record carefully.

Out of above eight witnesses examined by prosecution before trial court P.W.I complainant Chanda, P.W.2 Smt. Sawnaliya and P.W.3 Bhagauti are witnesses of fact and occurrence. P.W.I complainant Chanda has proved first information report Exhibit Ka. 1 in accordance with law and P.W.I complainant Chanda, P.W.2 Smt. Sawnaliya and P.W.3 Bhagauti all have supported story of prosecution narrated in first information report.

P.W.4 Constable 124 Ramanand has stated in his statement on oath that on 28.12.1980 he was posted in Police Station Girwan. On that day after registration of this crime he carried register of inquest report and other related papers from Police Station Girwan to Chauki Khurhand and thereafter he went to place of occurrence with S.I. Mohammad Farid where S.I. Mohammad Farid prepared inquest report of dead bodies of deceased and entrusted him dead bodies in sealed cover for post-mortem. He carried dead bodies to post-mortem house along with chaukidar. He has stated that no one was permitted to interfere with dead bodies so long dead bodies remained in their custody.

P.W.5 Constable 150 Ahsan Ahmad has stated in his statement on oath that on 28.1.1980 he was posted in Police Station Girwan and on that day he carried injured Sawnaliya along with chitthi majrubi to District Hospital, Banda, where her medical examination was conducted. He has stated that he brought injury report of Sawnaliya to said police station.

P.W.6 Head Constable Kaptan Singh has stated in his statement on oath that on 28.12.1980 he was posted as Head Moharrir in Police Station Girwan. On that day complainant Chanda presented F.I.R. Exhibit Ka. 1 in Police Station Girwan, on the basis of which he prepared chick F.I.R. Exhibit Ka.2 in his handwriting with his signature. He has stated that at the same time he made entry of registration of crime in rapat No. 7 of GD. at 8.45 a.m. He has proved copy of G.D. as Exhibit Ka.3.

P.W.6 Head Constable Kaptan Singh has stated in his statement on oath that he pre-paredchitthi majrubi of injured Sawnaliya Exhibit Ka.4. He has further stated that he sent papers Of this crime along with inquest register to S.O. at Sauta through constable Ramanand.

P.W.6 Head Constable Kaptan Singh has stated'' in his statement on oath that he sent special report of this crime through Constable 172 Shiv Balak Singh on 28.12.1980. Entry has beeri made in rapat No. 9 of G.D. at 10.15.

PW.6 Head Constable Kaptan Singh has further stated in his statement on oath that on 29.12.1980 post-mortem reports and two sealed bundles were brought to police station by Constable Ramanand, regarding which entry has been made in rapat No. 14 of G.D. at 17.00 p.m. He has proved copy of said GD. as Exhibit Ka.5.

P.W. 7 Dr. A.K. Agarwal has stated in his statement on oath that on 28.12.1980 he was posted as Medical Officer in district Banda. He has stated in his statement that on 28.12.1980 at 30.00 p.m. he conducted medical examination of Smt. Sawnaliya P.W.2, who was brought by Constable Ahsan Ahmad C.P. No. 150 Police Station Girwan, District Banda.

P.W. 7 Dr. A.K. Agarwal has proved injuries of P.W. 2 Smt. Sawnaliya as well as injury report of P.W. 2 Smt. Sawnaliya Exhibit Ka.6.

P.W. 7 Dr. A.K. Agarwal has stated in his statement on oath that on 29.12.1980 at 12.30 p.m. he conducted post-mortem of deceased Sheopatiya and at 3.00 p.m. he conducted post-mortem of deceased Bhauna alias Ram Bhawan, whose dead bodies were brought by Constable 124 Ramanand and chaukidar of village and were identified by them.

P.W. 7 Dr. A.K. Agarwal has proved post-mortem report of deceased Sheopatiya and deceased Bhauna alias Ram Bahwan as Exhibit Ka.7 and Exhibit Ka.8 respectively.

P.W. 7 Dr. A.K. Agarwal has. stated in his statement on oath that cause of death of both deceased was shock and haemorrhage and death of both deceased might have occurred on 28.12.1980 at 7.00 a.m.

P.W.8 Investigating Officer S.I. Kamta Singh has stated in his statement on oath that on 28.12.1980 he was posted as SO. in Police Station Girwan, District Banda. He has stated that he received papers of this crime and register of inquest report at outpost Khurhand through constable Ramanand Shukla. Thereafter he went to place of Recurrence along with S.I. Mohammad Farid and constable Ramanand where inquest reports of dead bodies of Bhauna alias Ram Bhawan and Sheopatiya were prepared. He has proved inquest reports of both deceased as Exhibit Ka. 9 and Exhibit Ka. 10.

40 P.W.8 Investigating Officer S.L. Kamta Singh has stated in his statement on oath that Chalan Nash and Naksha Nash of both deceased Exhibits Ka.11 to Exhibit Ka. 14 were prepared on spot and dead bodies of both deceased were kept in sealed cover separately. Thereafter dead bodies of both deceased were sent through constable Ramanand and chaukidar Chunnu with papers for post-mortem.

P.W.8 Investigating Officer S.I. Kamta Singh has stated in his statement that he took blood stained earth and plain earth from the place where dead body of Bhauna alias Ram Bhawan was found and prepared recovery memo Exhibit Ka.15 for the same. He has stated that blood stained earth and plain earth were kept in containers. He has proved said blood stained earth and plain earth as material Exhibit 1 and Exhibit 2 respectively.

P.W.8 Investigating Officer S.I. Kamta Singh has stated in his statement on oath that a "lota" was recovered from place of dead body of Bhauna for which he prepared recovery memo Exhibit Ka. 16. He has further stated in his statement on oath that a "Kurta" of blue colour material Exhibit 3 was also recovered from the place of dead body of Bhauna for which he prepared recovery memo Exhibit Ka. 17. He has stated that this "Kurta" had been stated to be Kurta of accused Chutku.

P.W.8 Investigating Officer S.I. Kamta Singh has stated in his statement on oath that he took in possession one kurta (shirt), one baniyani and one pair shoes of deceased from spot. He has proved said articles as material Exhibit Nos. 4, 5 and 6. He has also proved recovery memo of said article Exhibit Ka. 19. He has stated in his statement that piece of bangle material Exhibit 7 were also recovered from spot.

P.W.8 Investigating Officer S.I. Kamta Singh has stated in his statement that he took blood stained earth and plain earth from the place of dead body of Sheopatiya and kept in sealed cover which are material Exhibit 8 and Exhibit 9 respectively. He has proved recovery memo of blood stained earth and plain earth as Exhibit Ka.20.

P.W.8 Investigating Officer S.I. Kamta Singh has stated in his statement that pieces of bangle were recovered from place of dead body of Sheopatiya also for which he prepared recovery memo Exhibit Ka.21. He has proved said pieces of bangle as material Exhibit 10.

P.W.8 Investigation Officer S.I. Kamta Singh has further stated in his statement that he recovered from place of occurrence one pair of shoes also having blood stains for which he prepared recovery memo Exhibit Ka.22. He has proved said pair of shoes as material Exhibit 11.

P.W.8 Investigation Officer S.I. Kamta Singh has stated in his statement that he recovered one fired cartridge also from place of occurrence for which he prepared recovery memo Exhibit Ka.23. He has proved said fired cartridge as material Exhibit 12.

P.W.8 Investigation Officer S.I. Kamta Singh has stated in his statement that he recovered one lathi, one barchhi lathi and a small axe (kulhari) from the field of Bulla Kumhar situated at considerable distance from place of occurrence. He has proved said lathi, barchhi lathi and small axe (kulhari) as material Exhibits 13, 14 and 15 respectively. He has proved recovery memo of said articles Exhibit Ka.24 also.

P.W.8 Investigating Officers. I. Kamta Singh has stated in his statement that he prepared site plan of place of occurrence Exhibit Ka.25 on spot. He has further stated in his statement that he prepared site plan Exhibit Ka.26 showing place of recovery of lathi, lathi barchhi and axe (kulhari).

P.W.8 Investigation Officer S.I. Kamta Singh has stated in his statement that during investigation he made enquiry with Dr. A.K. Agarwal regarding weapons used by accused for injuries caused to Bhauna, whereupon Dr. A.K. Agarwal submitted written reply Exhibit Ka.27.

P.W.8 Investigating Officer S.I. Kamta Singh has stated in his statement that after having completed investigation he submitted charge-sheet Exhibit Ka.28 against all accused in his handwriting with his signature.

D.W. 1 R.S. Saraswat has stated in his statement on oath that in January, 1980 he was posted as Station Officer, Police Station Girwan. He has admitted that he was suspended on the complaint of accused Amar Nath.

After having gone through entire evidence on record it is apparent that P.W. 1 complainant Chanda, P.W.2 Suit. Sawnaliya and P.W.3 Bhagauti are eye-witnesses. P.W. 1 complainant Chanda is brother of deceased Bhauna. P.W.2 Smt. Sawnaliya is the wife of deceased Bhauna and P.W.3 Bhagauti is the father of deceased Bhauna.

Time of occurrence is alleged to be 7.00 a.m. in the morning and date of occurrence is 28.12.1980. In winter season presence of all family members at house early in the morning at 7.00 a.m. appears quite natural.

It is apparent from F.I.R. Exhibit Ka.1 as well as from statements of P.W. 1 complainant Chanda, P.W.2 Smt. Sanwaliya and P.W.3 Bhagauti that Bhauna had gone to ease himself. Thereafter accused Jagannath armed with barchhi, accused Chotu alias Chutku armed with kulhari, accused Amar Nath armed with lathi and accused Ram Kumar armed with tamancha (country-made pistol) went behind Bhauna, whereupon complainant Chanda and his family members suspected that accused are going to do something wrong. Therefore complainant Chanda, his father Bhagauti, mother Sheopatiya and his brother Bhauna''s wife Sawnaliya rushed towards Bhauna. But having reached earlier said accused assaulted Bhauna to death with barchhi, kulhari and lathi. When mother of Bhauna reached there and tried to save Bhauna they assaulted her also to death. When Sawnaliya wife of Bhauna reached there, they assaulted her also.

Site plan of place of occurrence Exhibit Ka.25 proved by P.W.8 Investigating Officer Kamta Singh shows that houses of both parties were situated at a short distance from place of occurrence

It is apparent from version of F.I.R. as well as Statements of P.W.I complainant Chanda, P.W.2 Smt. Sawnaliya and P.W.3 Bhagauti that complainant Chanda is brother of Bhauna (now deceased) and both were accused in murder case of deceased Ratti and his son Lallu. Admittedly accused Jagan Nath and Amar Nath are sons of said Ratti and cause/motive of present occurrence is alleged said enmity of murder of Ratti and his son. Therefore seeing suspicious movements of accused towards Bhauna it is natural that family members of Bhauna must have rushed towards Bhauna to caution him and to save him. Keeping in view aforesaid enmity prevailing between parties it is also natural that male persons namely P.W. 1 complainant Chanda and his father P.W.3 Bhagauti shall keep themselves beyond reach of accused by placing lady members of the family on front line under presumption that ladies shall not be assaulted by accused.

After having gone through entire evidence on record as well as facts and circumstances of the case, we are of the view that P.W.I complainant Chanda, P.W.2 Smt. Sawnaliya and P.W.3 Bhagauti are natural witnesses of occurrence and story of occurrence narrated by prosecution also appears natural. There appears no sufficient ground to disbelieve presence of aforesaid three witnesses of occurrence at the time of occurrence.

Presence of P.W.3 Bhagauti cannot be disbelieved merely on the ground that he is not a witness named in F.I.R. P.W.3 Bhagauti is not a witness examined for the first time in Court. Investigating Officer has recorded his statement under section 161 Cr.P.C. and he has stated his presence at the time of incident in his statement on oath. P.W.I complainant Chand and P.W.2 Smt. Sawnaliya has also stated his presence at the time of incident in their statements on oath and in view of discussion made and conclusion drawn above he is a natural witness of occurrence. In the case of State of M.P. Vs. Dhirendra Kumar, (1997) 8 AD 91 : AIR 1997 SC 318 : (1997) 4 Crimes 195 : (1997) 10 JT 93 : (1996) 8 SCALE 233 : (1997) 1 SCC 99 : (1997) 1 SCC 93 : (1996) 8 SCR 443 Supp : (1997) AIRSCW 74 : (1996) 8 Supreme 272 Honourable Apex Court has held that evidence of witness should be tested on its own strength and weakness and not from mere omission in F.I.R.

In view of principle laid down by Honourable Apex Court in the case of Dharamveer and Others Vs. State of U.P., AIR 2010 SC 1378 : (2010) CLT 619 : (2010) CriLJ 2393 : (2010) 2 Crimes 31 : (2010) 2 JT 592 : (2010) 2 SCALE 776 : (2010) 4 SCC 469 : (2010) 3 SCR 162 : (2010) 3 UJ 1531 , presence of P.W. 1 complainant Chanda and P.W.3 Bhagauti at the time and place of occurrence cannot be denied on the ground that they have not suffered injuries in occurrence. In F.I.R. Exhibit Ka. 1 it has-been specifically alleged that complainant Chanda ran away and climbed towards hill. Accused Ram Kumar fired at him but fire could mot touch him.

In view of principles laid down by Honourable Apex Court in case of Dharamveer and Others Vs. State of U.P., AIR 2010 SC 1378 : (2010) CLT 619 : (2010) CriLJ 2393 : (2010) 2 Crimes 31 : (2010) 2 JT 592 : (2010) 2 SCALE 776 : (2010) 4 SCC 469 : (2010) 3 SCR 162 : (2010) 3 UJ 1531 testimonies of P.W.I complainant Chanda, P.W.2 Sawnaliya and P.W.3 Chagaugati cannot be discarded merely on the ground of relationship with deceased and enmity with accused.

It is apparent from F.I.R. Exhibit Ka. 1 as well statements of P.W.I complainant Chanda, P.W.2 Smt. Sawnaliya and P.W.3 Bhagauti that P.W.2 Smt. Sanwaliya has suffered injuries in the occurrence. Injury report of P.W.2 Sawnaliya Exhibit Ka.6 has been proved by P.W.7 Dr. A.K. Agarwal.

Perusal of injury report of P.W.2 Sawnaliya Exhibit Ka.6 as well as statement of P.W.7 Dr. A.K. Agarwal shows that medical examination of Sawnaliya has been conducted on 28.12.1980 at 3.00 p.m. and she has been brought for medical examination by constable C.P. No. 150 Ahsan Ahmad of Police Station Girwan.

One linear abrasion in inner aspect of right forearm, one linear abrasion on back of right forearm and one contusion on back of right forearm were found on the body of Sawnaliya at the time of medical examination.

According to injury report Exhibit Ka.6 as well as statement P.W.7 Dr. A.K. Agarwal duration of her injuries was 1/3rd day. Thus injury report Exhibit Ka.6 as well as statement of P.W.7 Dr. A.K. Agrawal shows that P.W.2 Sawnaliya had injuries which might have been caused at the time of occurrence alleged by prosecution. Description of injuries of P.W. Sawnaliya has been entered in G.D. Exhibit Ka.3 also proved by P.W.6 H.C. Kaptan Singh.

P.W.2 Sawnaliya has stated in her statement on oath that she suffered injuries in her hands caused by accused appellant Amar Nath.

After having gone through F.I.R. Exhibit Ka. 1 and injury report of P.W.2 Sawnaliya Exhibit Ka.6 as well as statements of P.W. 1 complainant Chanda, P.W.2 Smt. Sawnaliya, P.W.3 Bhagauti and P.W.7 Dr. A.K. Agrawal, we are of the view that prosecution has fully proved that P.W.2 Sawnliya also suffered injuries at the time of occurrence. Therefore, she is a injured witness also.

It is apparent from statement of P.W.6 H.C. Kaptan Singh and G.D. relating to registration of crime Exhibit Ka.2 that F.I.R. has been lodged by P.W.I complainant Chanda at police Station Girwan on 28.12.1980 at 8.45 a.m. According to chick F.I.R. Exhibit Ka.2 distance of place of occurrence from police station is 2 miles. P.W. 1 complainant Chanda has stated in statement on oath that when accused ran away Mithlesh came after some time. Mithlesh wrote report as he told. Thereafter he went along with Sawnaliya to Police Station Girwan with report leaving dead bodies in supervision of chaukidar. He has stated in his statement that he gave report to Munshi. He has proved F.I.R. Exhibit Ka. 1 in his statement. P.W.6 H.C. Kaptan Singh has stated in his statement on oath that first information report was presented by complainant Chanda on the basis of which he wrote chick F.I.R. Exhibit Ka.2 and made entry of registration of crime in G.D. Exhibit Ka.3 at 8.45 a.m.

Perusal of inquest report of deceased Bhauna alias Ram Bhawan Exhibit Ka.9 proved by P.W.8 Investigation Officer S.I. Kamta Singh shows that his inquest report has been prepared on 28.12.1980 at 11.00 a.m. Perusal of inquest report of deceased Sheopatiya Exhibit Ka. 10 proved by P.W. 8 Investigation Officer S.I. Kamta Singh shows that her inquest report has been prepared on 28.12.1980 at 12.30 p.m. P.W.8 Investigation Officer S.I. Kamta Singh has stated in his statement on oath that papers relating to this crime as well as inquest register were received by him at police chauki Khurhand by constable Rama Nand Shukla and from that place he went to place of occurrence along with S.I. Mohd. Farid and Constable Rama Nand.

It is apparent from statement of P.W.4 Constable Rama Nand also that after registration of crime he carried register of inquest report as well as papers relating to this crime to police chauki Khurhand and from that place he went to place of occurrence with S.I. Mohd. Farid. In inquest report of deceased Bhauna Exhibit Ka.9 crime No. 173, under sections 302, 307, I.P.C. has been mentioned and copies of chick F.I.R. have been annexed with inquest reports of both deceased as Annexure No. 2.

After having gone through whole evidence on record, we are of the view that there is no sufficient ground to hold F.I.R. ante time.

In form 13 of deceased Bhauna of Exhibit Ka.11, Photo Nash of deceased Bhauna Exhibit Ka. 12, form 13 of deceased Sheopatiya Exhibit Ka.13 and photo Nash of Sheopatiya Exhibit Ka.14 sections 302, 307, 323, I.P.C. have been written. But addition of section 323 I.P.C. on these papers may not be a ground to believe that F.I.R. is ante time because injuries of P.W.2 Sawnaliya are simple and offence under section 323, I.P.C. is made out for injuries caused to her. Therefore addition of section 323, I.P.C. by Investigating Officer on the spot is not against law. Charge sheet Exhibit Ka.28 also shows that charge-sheet has been submitted for offences punishable under sections 302, 307, 323 I.P.C. Therefore no adverse inference may be drawn against prosecution on the basis of addition of section 323, I.P.C. in the aforesaid papers.

P.W.6 H.C. Kaptan Singh has stated in his statement on oath that special report of this crime was sent through constable C.P. No. 172 Shiv Balak on 28.12.1980. Entry has been made in rapat No. 9 of G.D. dated 28.12.1980 at 10.15.

P.W.6 H.C. Kaptan Singh has denied suggestion given to him by defence in cross-examination and has stated that it is wrong to say that special report was sent on 29.12.1980 and certify of G.D. in this respect is ante time and ante dated.

Learned trial court has considered the issue 6f ante time report and has concluded that there is no material on record to hold F.I.R. ante time. In view of discussion made and conclusion drawn above, conclusion drawn by trial court in this respect appears correct and in accordance with evidence on record.

Perusal of statement of P.W.7 Dr. A.K. Agrawal as well as post-mortem reports of deceased; Sheopatiya and deceased Bhauna Exhibit Ka 7 and Exhibit Ka.8 shows that there were ten ante mortem injuries on the dead body of Sheopatiya, out of which seven injuries were lacerated wounds, one injury was incise wound and one injury was punctured wound. 15 ante mortem injuries have been found on the dead body of deceased Bhauna and all of 15 injuries are incised wounds.

P.W.7 Dr. A.K. Agrawal has stated in his statement on oath that post-mortem of deceased Sheopatiya was conducted on 29.12.1980 at 12.30 and post-mortem of deceased of Bhauna was conducted on 29.12.1980 at 3.00 p.m. He has further stated that death of both deceased might have occurred 1 - 1/4 day earlier. In post-mortem report of deceased Sheopatiya Exhibit Ka.7 and post mortem report of deceased Bhauna Exhibit Ka.8 also time of death has been mentioned about 1 -1/4 day earlier.

Incise wounds may be caused by kulhari, punctured wound may be caused by barchi and lacerated wounds may be caused by lathi. Thus injury report of P.W. 2 Sawnaliya Exhibit Ka.6 and post-mortem report of deceased Sheopatiya and Bhauna Exhibit Ka.7 and Exhibit Ka.8 as well as statement of P.W.7 Dr. A.K. Agarwal fully corroborates time of occurrence alleged by prosecution as well as weapons assigned by prosecution to accused.

Place of occurrence alleged by prosecution is fully corroborated by site plan Exhibit Ka.25 as well as statement of P.W.8 S.I. Kamta Singh.

It is apparent from recovery memos of blood stained earth, clothes, pieces of bangles and shoes Exhibits Ka. 15, Ka.17, K18, Ka.19, Ka.20, Ka21 and Ka.22 along with serologist reports Exhibit Ka.29 and Ka.30 that blood stained earth, clothes, shoes and pieces of bangle have been found on the place of occurrence. Exhibit Ka.16 shows that, "Lota" of deceased has been recovered by Investigating Officer from spot.

In view of above place of occurrence alleged by prosecution is fully proved. Besides this place of occurrence has not been challenged by defence.

In the case of Brahm Swaroop and Another Vs. State of U.P., AIR 2011 SC 280 : (2011) CriLJ 306 : (2010) 11 JT 437 : (2010) 11 SCALE 443 : (2011) 6 SCC 288 : (2011) 2 SCC(Cri) 923 : (2010) 10 UJ 4853 : (2010) AIRSCW 6704 : (2010) 7 Supreme 549 , Hon''ble Apex Court has held that if the evidence of eye witnesses is trustworthy and believed by the court the question of motive becomes totally irrelevant. However motive cause of occurrence has been specifically stated in F.I.R. Exhibit Ka.1 and has been proved by P.W.I complainant Chanda in his statement on oath. Accused appellant Amar Nath has also stated in his statement under section 313, Cr.P.C. that complainant Chanda and others have murdered his father and brother on 25.1.1980. Thus motive of occurrence alleged by prosecution is fully proved.

In the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri, AIR 2012 SC 1249 : (2012) 2 JCC 1185 : (2012) 3 SCALE 271 : (2012) 4 SCC 124 : (2012) AIRSCW 2765 : (2012) AIRSCW 2763 : (2012) 2 Supreme 561 , Hon''ble Apex Court has held that "minor contradictions are bound to appear in the statement of truthful witnesses as memory sometimes plays false, sense of observation differs from person to person."

In the case of State of U.P. Vs. M.K. Anthony, AIR 1985 SC 48 : (1985) CriLJ 493 : (1984) 2 SCALE 728 : (1985) 1 SCC 505 , Hon''ble Apex Court has held that "every honest and truthful witness may differ in some details unrelated to main incident because power of observation, retention and reproduction differ with individuals."

We have gone through whole statements of P.W.I complainant Chanda, P.W.2 Sawnaliya and P.W.3 Bhagauti. In view of above pronouncements of Hon''ble Apex Court, we are of the view that there is no material contradiction in their statements to disbelieve their testimonies.

In F.I.R. Exhibit Ka.1 as well as statements of P.W.I complainant Chanda, P.W.2 Sawnaliya and P.W.3 Bhagauti it has not been stated as to how many injuries were caused to deceased Bhauna and Shiopatiya by each accused separately but this cannot be a ground to discard the case of prosecution because it is unnatural to count blows given by accused at the time of occurrence. Moreover it is apparent from F.I.R. Exhibit Ka. 1 that accused reached to Bhauna earlier than complainant P.W.I complainant Chanda, P.W.2 Smt. Sawanaliya and P.W.3 Bhagauti. In view of facts and circumstances of the case it is not possible for P.W. 1 complainant Chanda, P.W.2 Smt. Sawanaliya and P.W.3 Bhagauti to give account of each blow given by accused to both deceased.

In the case of State of U.P. Vs. Krishna Master and Others, AIR 2010 SC 3071 : (2010) CriLJ 3889 : (2010) 8 JT 240 : (2010) 7 SCALE 597 : (2010) 12 SCC 324 : (2011) 1 SCC(Cri) 381 : (2010) 9 SCR 563 : (2010) AIRSCW 4733 : (2010) 6 Supreme 193 Hon''ble Apex Court has held that "prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof."

In the case of State of U.P. Vs. Krishna Master and Others, AIR 2010 SC 3071 : (2010) CriLJ 3889 : (2010) 8 JT 240 : (2010) 7 SCALE 597 : (2010) 12 SCC 324 : (2011) 1 SCC(Cri) 381 : (2010) 9 SCR 563 : (2010) AIRSCW 4733 : (2010) 6 Supreme 193 , Hon''ble Apex Court has further held that "the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness."

Having gone through entire evidence on record as well as facts and circumstances of the case, we are of the view that P.W. 1 complainant Chanda, P.W.2 Sawnaliya and P.W.3 Bhagauti are trust worthy witnesses and there is no sufficient ground to disbelieve to their testimonies.

In the case of Narpal Singh v. State of Haryana 1977 Cr LJ 642 SC page 649, Honourable Apex Court has held that if witnesses examined are believed the question of inference for non examination does not arise.

In view of above pronouncement of Honourable Apex Court no adverse inference may be drawn against prosecution as witnesses examined are natural and trustworthy witnesses.

Complainant had been made by accused Amar Nam against D.W.I R.S. Saraswat the then S.O., of Police Station Girwan. He had been transferred from said police station and investigation of this case has been made by P.W.8 S.I. Kamta Singh, who had been posted as S.O. Police Station Girwan after transfer of D.W.I R.S. Saraswat.

In view of above after going through whole evidence on record, we are of the view that there is no sufficient ground to hold investigation unfair and biased. Besides this prosecution case shall be judged on the basis of evidence adduced before court and in view of conclusion drawn above P.W.I complainant Chanda, P.W.2 Sawnaliya and P.W.3 Bhagauti are trust worthy witnesses.

After having gone through entire evidence on record as well as facts and circumstances of the case in view of discussion made and conclusion drawn above, we are of the view that prosecution has succeeded to prove that accused appellants along with deceased accused appellant Chotu alias Chutku have caused injuries to deceased Bhauna and Sheopatiya as well as to P.W.2 Sawnaliya in furtherance of common intention of all and injuries inflicted to deceased Bhauna and Sheopatiya were sufficient in ordinary course of nature to cause death.

In view of discussion made and conclusion drawn above, we are of the view that evidence on record is sufficient to convict accused appellants Jagan Nath and Amar Nam for offences punishable under section 302, I.P.C. read with section 34, I.P.C. and section 323, I.P.C. read with section 34, I.P.C.

Perusal of impugned judgment passed by trial court shows that trial court has gone through entire evidence on record and has considered all evidence and fact relevant for determination of the case. The conclusion drawn by trial court is based on judicious analysis of evidence on record in the light of judicial pronouncements.

Accused appellants are not entitled to get benefit of acquittal of co-accused Ram Kumar recorded by trial court. His case stands on a different footing.

In the case of Ranjit Singh and Others Vs. State of Madhya Pradesh, AIR 2011 SC 255 : (2011) CriLJ 283 : (2010) 12 JT 167 : (2011) 1 RCR(Criminal) 44 : (2010) 11 SCALE 391 : (2011) 4 SCC 336 : (2011) 2 SCC(Cri) 227 , Hon''ble Apex Court has relied on its previous judgment rendered in the case of Prem Singh and Others Vs. State of Haryana, AIR 2009 SC 2573 : (2009) 8 JT 185 : (2009) 7 SCALE 637 : (2009) 14 SCC 494 : (2009) 7 SCR 1142 : (2009) AIRSCW 4486 , wherein Hon''ble Apex Court has held as under:

"The Court has to separate the falsehood from the truth and it is only in exceptional circumstances when it is not possible to separate the grain from the chaff because they are inextricably mixed up, that the whole evidence of such a witness can be discarded."

In view of discussion made and conclusion drawn above, we are of the view that learned trial court has rightly convicted accused appellants Jagan Nath and Amar Nath for offences punishable under section 302, I.P.C. read with section 34, I.P.C. and section 323, I.P.C. read with section 34, I.P.C.

In the case of State rep. by Inspector of Police Vs. Saravanan and Another, AIR 2009 SC 152 : (2008) 11 JT 290 : (2008) 13 SCALE 253 , Hon''ble Apex Court has held that, "the trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons."

In view of pronouncements of Hon''ble Apex Court, we are of the view that there is no sufficient ground for interference in impugned judgment and order of trial court regarding conviction of accused appellants for offences punishable under section 302, I.P.C. read with section 34, I.P.C. and section 323, I.P.C. read with section 34, I.P.C.

Sentence awarded by trial court cannot be said to be excessive and State has not filed appeal for enhancement of sentence.

In view of discussion made and conclusion drawn above we find no justification for interference in impugned judgment and order passed by trial court. Appeal has no merit and is liable to be dismissed.

Appeal is dismissed accordingly.

Accused appellants Jagan Nath and Amar Nath are on bail. They shall surrender before the trial court for serving sentence within 30 days from the date of judgment of this Court, failing which trial court shall ensure their arrest and shall send them to jail for serving sentence in accordance with law.

Office is directed to send copy of judgment to trial court for securing compliance. Lower court record shall be returned to the concerned court immediately.