Jalil Khan and Others vs State of U.P.

Pratyush Kumar, J.—1. The instant criminal appeal filed by accused-appellant is directed against judgment and order dated 21st August, 1989 passed by Sri S.K. Pandey, the then Addl. Sessions Judge, Sultanpur in S.T. No. 30 of 1987, State Vs. Jalil Khan and five others, whereby all the appellants were convicted under Sections 302/149, IPC and sentenced to undergo imprisonment for life and further appellants Nos. 4, 5 and 6 were convicted under Section 148 IPC and sentenced to undergo rigorous imprisonment for a period of one and a half years. Rests of the appellants were also convicted under Section 147 IPC and sentenced to undergo one year rigorous imprisonment.

In the present appeal, the facts of the prosecution case are as under:-

On 29th March, 1986 at 5.45 p.m., Musa Qasim Khan, r/o Village-Taton Muraini, P.S. Chanda gave a written report at the police station stating therein that on that date he and his father Abdul Samad Khan were going for shoping to Muraini, on the way before minor canal near field of wheat of Mazid at about 4 p.m. they were ambushed by Jalil Khan (armed with spear), Taufiq Khan and Nasir Khan (armed with farsa), Bhullan Khan, Bashir Khan and Akhtar Khan (armed with lathi). On the exhortation of Bashir Khan "salon ko jaan se khatam kar do" they started to beat Abdul Samad Khan with lathi, spear and farsa. For saving his life, the first informant ran towards the village. On his shouting, Ram Das, Munir Khan, Shakur Khan, Kallu Khan, Hafij Khan and many others persons coming from or going to the market came there and intervened. The assailants taking his father to be dead made good their escape. His father sustained many injuries, had two broken teeth and his condition was serious. After writing his report necessary action be taken.

At this, chick FIR was scribed, Case Crime No. 63 of 1986, under Sections 147, 148, 149, 307, 323, 324, 325, 504 IPC was registered, requisite entry was made in the report of the general diary and investigation was entrusted to S.I. R.P. Chaudhary. The Investigating Officer immediately started the investigation and recorded the statement of injured Abdul Samad, who was sent for medical examination and treatment to PHC Pratapur Kamecha where doctor after seeing the serious condition of the injured referred him to the District Hospital, Sultanpur, where the injured was admitted, medically examined and treated. When his condition deteriorated he was referred for further treatment at Lucknow. On his way to Lucknow, he succumbed to injuries and died at about 2-2:30 a.m. Thereafter in the said case crime, section 302 IPC was added and investigation was taken over by Ramesh Chandra Dubey, the then Station Officer of P.S. Chanda, who after completing the investigation submitted the charge-sheet against all the accused persons.

The case was committed to the Court of Session where all the appellants were charged under Section 302/149 IPC separately. Appellant No. 1 to 3 were also charged under Section 148 IPC and rests of the appellants were charged under Section 147 IPC. The appellants denied the charges and claimed to be tried.

In order to prove the charges on behalf of the prosecution in the documentary evidence, besides other papers written reports Exbts. Ka-1 and Ka-2, post-mortem report Exbt. Ka-3, copy of chick FIR Exbt. Ka-4, copies of reports of general diary Exbts. Ka-5, Ka-6, copies of reports Exbts. Ka-8 to Ka-11, chick FIR Exbt. Ka-7, inquest report Exbt. Ka-13, recovery memo Exbt. Ext. Ka-18 and Ka-20, site plan Exbt. Ka-19 were filed.

In the oral evidence, nine witnesses were examined. Thereafter statements of the appellants were recorded under Section 313 Cr.P.C. whereby they disputed the correctness of the prosecution version, denied the facts stated by the witnesses and claimed that they were falsely implicated due to enmity. On their behalf a written statement was filed. From the written statement defence case appears to be that deceased was not resident of Taton Muraini, he was resident of village of Chandpur, he was not going to Muraini market because from his village there is a straightway to Muraini market of lesser distance. The deceased was drunkard by nature, daily he used to take liquor at Muraini. The incident took place when he was returning to his village in the evening hours after taking liquor, none saw him while he was done to death.

In the defence large number of documentary evidence has been filed. The learned trial Judge after hearing the arguments found the charges against the appellants proved by cogent and trustworthy evidence. He did not accept the arguments of the defence that FIR was anti-timed, testimonies of eye witnesses contained material contradictions and dying declaration was fictitious. After convicting them learned Trial Judge sentenced them as above.

Feeling aggrieved, the present appeal has been filed. During pendency of the appeal, appellant Nos. 4 to 6, Bhullan Khan, Bashir Khan and Akhtar Khan have died and their appeal stood abated.

Heard Sri Nagendra Mohan, learned counsel appearing for the surviving appellants and Sri Umesh Chandra Verma, learned AGA for the State-respondent and perused the record.

On behalf of the surviving appellants, findings recorded by the learned Trial Judge have been challenged on the ground that FIR was anti-timed. Reasons are; chitthi majrubi did not find mention case crime number and section, chick FIR was not signed by the first informant. Constable Bhagwat who accompanied the injured to the Hospital did not sign the report of the G.D. as a token of his departure and injured reached the District Hospital, Sultanpur at 8:10 p.m. The second ground is that the witnesses were planted and they have not seen the occurrence, no reliance can be placed on their testimonies. Further they contradicted themselves and the contradictions occurring in the testimonies of the eye witnesses touched the occurrence itself, when the witnesses are relative/inimical, these contradictions neither can be treated to be minor nor they can be ignored. The 3rd ground of challenge is that dying declaration has been recorded in contravention of para 115 of the U.P. Police Regulations. It was not recorded in the presence of independent person, it is a reproduction of the narration contained in the first information report which shows that dying declaration was manufactured after death of the injured. Fourth ground is that the learned Trial Judge has ignored contradictions between medical evidence and the ocular version. According to learned counsel for the appellants, contradictions occurring in the testimonies of the eye witnesses coupled with contradiction with the medical evidence are sufficient to show that witnesses were not present at the spot and they are planted witnesses.

On behalf of the State-respondent, learned AGA has repelled these arguments. According to him, only on account of non mentioning of case crime number and sections on chitthi majrubi does not make the FIR to be anti-timed. He has further submitted that contradictions indicated by the appellants are not fatal, it is natural that in the testimony of each witness some variation would occur. Therefore, contradictions/discrepancies are natural and they cannot be made ground to discard oral statement given by the eye-witnesses. According to him, when the statement of the injured was recorded it was not recorded in contemplation of death, hence, there was no need to comply with the para 115 of the U.P. Police Regulations. According to him, medical evidence cannot be placed on a pedestal higher than the ocular version of the occurrence given by the eye witnesses. In support of his argument the learned counsel for the appellant has referred following cases:

(i) Shivaji Sahabrao Bobade Vs. State of Maharashtra, , 1973 SCC (Cri) 1033.

(ii) Jitendra Kumar Vs. State of Haryana 2012 (6) SCC 204.

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

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [, 1995 CRI.L.J. 2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

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

In the present case we have a difficult task, as on behalf of the defence, correctness of the medical evidence as well as ocular version of the occurrence have been disputed. It is trite to say that if ocular version of the occurrence is found reliable by the Court, medical evidence especially the opinion part cannot be made a ground to reject the eye witness account. Only when the facts stated by the doctors stand in contradiction with the ocular version and they are incompatible with each other, the Court would be justified in doubting the correctness of the ocular version.

Keeping in view this legal proposition, first we propose to re-examine and re-evaluate the eye witness account given by three witnesses, namely Musa Qasim (P.W.-1), Ram Das (P.W.-2) and Kallu (P.W.-3).

To do so the facts emerging from the medical evidence required to be placed on record. In the present case, injury report of Abdul Samad deceased is Exhibit Ka-6. It was prepared by Dr. R.K. Gupta, the then medical officer, District Hospital, Sultanpur. He has been examined as P.W.-5 by the prosecution. He has stated that on 29th March, 1986, he was working as emergency medical officer in the District Hospital that day at 8.10 p.m. he medically examined Abdul Samad brought by constable Bhagwat Singh. Condition of the patient was very critical, pulse could not be found. Blood pressure could not be recorded. On his body, he found 19 injuries. All were red in colour. Injury Nos. 1 and 9 could have been caused by sharp edged weapon, others by blunt object. Injury No. 6 was grievous. According to him, these injuries could have been inflicted at 4.00 p.m. on that day. At the time of medical examination, he has prepared the injury report Exhibit Ka-6 and recorded those 19 injuries therein. They are as under:-

Incised wound 6 c.m. x 0.5 c.m. X scalp deep on the left front parietal region of head 2.5 c.m. Above the left eye brow, margins clean and regular fresh bleeding present.

Lacerated wound 6 c.m. x 0.5 c.m. X scalp deep on the left parietal and mid parietal region of head, margin irregular, fresh blood present.

Lacerated wound 6.5 c.m. X 0.5 c.m. X scalp deep on the left parietal region of head just behind injury No. 1 margins irregular, fresh blood present.

Lacerated wound 3.5 c.m. X 0.5 c.m. X scalp deep on the right parietal region of head, 1 c.m. Below inj. No. 3 margins irregular, fresh blood present.

Lacerated wound 3.5 c.m. X 0.5 c.m. X scalp deep on the right parietal region of head, 7.5 c.m. above the upper end of pinna of right ear.

Upper left central incisor, lower left lateral incisor and left lower canine is absent from sockets. Fresh bleeding present from the corresponding sockets.

Contusion 8 c.m. X 1.5 c.m. along the right subconstal margin bright red.

Contused traumatic swelling all over the right arm.

Incised wound 1.5 c.m. X 0.3 c.m. X muscle deep x 6 c.m. below the right elbow top on the posterior surface of right forearm.

Contusion 6 c.m. x 10 c.m. on the posterior surface of right forearm bright red.

Contusion 7 c.m. x 1 c.m. on the posterior surface of right forearm 4 c.m. above the wrist joint.

Traumatic swelling 3 c.m. x 3 c.m. on the posterior surface of matatarso-phalingeal joint of right index finger.

Abraded contused traumatic swelling on lower 2/3rd of left arm, whole forearm and whole left hand, red in colour.

Contusion 16 c.m. x 1.5 c.m. on the outer aspect of upper part of left upper arm red in colour.

Abraded contused traumatic swelling all over the chin of left tibia, 19 c.m. below the lower end of left smee-cap, fresh blood present.

Contusion 19 c.m. x 2 c.m. on the anterior aspect of right thigh.

Contused 10 c.m. x 2 c.m. by the side of injury No. 16.

Contused traumatic swelling all over the right leg and right ankle joint bright red in colour.

Multiple contusions (parallel due to lathi) all over the back size ranging from 5 c.m. x 2 c.m. to 26 c.m. x 2 c.m. all bright red.

The other medical evidence is in the form of statement of Dr. H.C. Yadav, P.W.-4 who conducted the postmortem examination on 30th March, 1986 at 3.30 p.m. on the dead body of Abdul Samad. In the internal examination, he found 6th & 7th ribs right side fractured from the back. Right lung ruptured from the back side. According to him, 15 ante-mortem injuries were found on the dead body. Death had occurred due to shock and hemorrhage as a result of ante mortem injuries. Time since death was estimated to be half day. According to him injury No. 1 and 15 could have been caused by pharsa. Injury No. 8 could have been caused by Ballam, having sharp edge. He has proved post mortem report Exhibit Ka-3 wherein the following ante-mortem injuries recorded:-

Lacerated wound 9 c.m. x 0.6 c.m. x scalp deep over left side scalp 2.5 c.m. above left eye brow, oblique.

Lacerated wound 6.5 c.m. x 0.5 c.m. x muscle deep over left side head just behind injury No. 1 vertically in direction.

Lacerated wound 6 c.m. x 0.4 c.m. x bone deep on left side head 7 c.m. above left ear top, vertically in direction.

Lacerated wound 3.5 c.m. x 0.4 c.m. x bone deep on left side head, 8 c.m. above top of left ear vertically in direction.

Lacerated wound 3.5 c.m. x 0.4 c.m. x bone deep over left side, 12 c.m. above top of left ear vertically in direction.

Left upper central incisor, lower left incisor and left canine, three in total are absent from socket.

Contusion 7 c.m. x 2 c.m. on back of right upper arm.

Incised wound 1.5 c.m x 0.4 c.m. x muscle deep on back of right forearm 6 c.m. below elbow joint.

Contusion 6 c.m. x 2 c.m. on back of right forearm.

Traumatic swelling in area 30 c.m. x 15 c.m. over back of right upper arm, forearm and elbow joint with three abrasions in area 16 c.m. x 2 c.m. in middle of elbow joint.

Traumatic swelling with contusion, front of left knee and leg in area 45 c.m. in length all around.

Contusion 19 c.m. x 3 c.m. on front of right thigh.

Contusion 15 c.m. x 2 c.m. on front of right side chest, 8 c.m. below and medial to right side nipple.

Multiple contusions, parallel to each other, in area 30 c.m. x 22 c.m. size varying 5 c.m. x 2 c.m. to 28 c.m. x 2 c.m.

Incised wound 4 c.m. x 0.4 c.m. x bone deep on right side 7 c.m. above top of right ear.

On behalf of the defence, homicidal assault on the deceased was not disputed. The doctors were only cross examined about use of sharp edged weapon. So far as other statements relate to facts perceived by them, they remained unchallenged, use of sharp edged weapon is a matter of opinion which does not possess primacy over the ocular version of the occurrence, therefore, leaving this area open, we hold that statements of Dr. R.K. Gupta, P.W.-5 and Dr. H.P. Yadav, P.W.-4 are worthy of reliance and on their basis we further hold that on 29th March, 1986 at 8.10 p.m, Dr. R.K. Gupta medically examined Abdul Samad and found 19 injuries on his person. We further hold that on 30th March 1986, Dr. H.C. Yadav conducted the postmortem examination on the dead body of the deceased and found 15 ante-mortem injuries on the dead body. Death had occurred due to shock and hemorrhage as a result of ante mortem injuries. Death of the deceased could have occurred on 30th March, 1986 at 2.00-2.30 a.m.

Musa Qasim (P.W.-1) is the first informant. His testimony has been impeached on the ground of anti-timing of the FIR and his presence on the spot at the time of the occurrence.

Anti-timing of FIR and veracity of the testimony of this witness are inter-woven with each other. For this reason we propose first to deal with the argument that FIR was lodged with delay and it was anti-timed to strengthen the case of the prosecution. According to learned counsel for the appellants, the occurrence took place on 29th March, 1986 at 4 p.m., the FIR is alleged to have been lodged 5:45 p.m. From the place of occurrence, the police station Chanda situate at the distance of 12 k.m. In the chick FIR, though date of registration of this case has been shown to be 29th March, 1986, but according to learned counsel for the appellants, at the time of inquest held on 30th March, 1986 at 11:15 a.m. FIR was not in existence as it revealed from the first page of the inquest report where in the column of date and time of lodging the FIR entry has been made that FIR was lodged on 30th March, 1986 at 11 a.m.

His next argument is that on chitthi majrubi case crime number and sections have not been mentioned. His third argument is that Constable Bhagwat (P.W.-9) took the injured from the police station to PHC Pratapur Kamecha and has admitted that at the time of his departure with injured, report of the general diary was not signed by him.

One fact is undisputed that injured reached alive to the District Hospital, Sultanpur at 8:10 p.m. On 29th March, 1986. This fact stands proved from the injury report Exbt. Ka-6 and statement of Dr. R.K. Gupta (P.W.-5) who medically examined the injured and admitted him on that date for the treatment. This fact shows that injured was not found murdered after sun-set. He was taken, by the persons who had seen the occurrence, for the treatment to save his life promptly. Condition of the injured was serious, considering this fact omission by the clerk constable who omitted to write case crime number and sections at chitthi majrubi. Extb. Ka-6 is not a pointer to infer that at that time first information report was not lodged. Since injury report has been prepared on the back of chitthi majrubi, it has to be preceded by chitthi majrubi, from that we infer that the police must have been informed about the occurrence wherein the injured sustained injuries. After this there remains no doubt to speculate that without registration the case, police might have forwarded the injured for medical examination and treatment.

The incorrect entry made in the inquest report about date and time of lodging of FIR is also susceptible to explanation that on 30.3.1986 the first informant gave a second report Exbt. Ka-2 informing the police of P.S. concerned that Abdul Samad had expired. This may result in the form of error indicated by learned counsel for the appellants. Inquest report Exbt. Ka-13 was prepared by Ramesh Chandra Dubey (P.W.-8). On this point he was not asked a single question by the defence. Non cross examination on this point especially when the Investigating Officer categorically stated that he met the first informant on 30th March, 1986 at 11 a.m. for the first time, takes out force of this argument. For this reason we do not think on the basis of erroneous entry in inquest report FIR can be said to be anti-timed.

The other ground indicated by learned counsel for the appellants also appears to be without substance. Vidya Dhar Mishra (P.W.-6) clerk constable was cross examined on this point. According to him, there is no rule that whenever a police personnel is sent outside police station for official work it was necessary to obtain his signature on the report of the G.D.

Since the deceased was promptly taken from the spot to the police station and PHC for the treatment and he was medically examined at District Hospital, Sultanpur on the same day, we come to the opinion that the learned Trial Judge has rightly rejected the argument that FIR was lodged with delay and it was anti-timed.

Musa Qasim (P.W.-1) is the first informant and son of the deceased. According to him he and deceased were going to market at Muraini for shopping. When his father was ambushed and belaboured, his presence at the spot at the relevant time has been challenged on the ground that he is not resident of Taton Muraini. He actually lives at Village-Chandpur of District-Pratapgarh to establish this fact that number of papers have been filed by the defence during the trial such as copy of voter-list, of the year 1979 Exbt. Kha-5 and of the year of 1984 Exbt. Kha-7. Copy of FIR Exbt. Kha-8. Extract of family register Exbt. Kha-4. This witness during cross examination has stated that he had a house at Taton Muraini, a new house at Chandpur. Earlier his father used to live at Taton Muraini. Thereafter he shifted to the new house at Chandpur. These two villages are adjacent to each other, though Taton Muraini falls within District-Sultanpur and Chandpur within District-Pratapgarh.

The second exception taken to his testimony is that from his house, which he admits, there is one dirt road which meets a metalled road going eastward to Muraini market. According to him from his house by this route, Muraini market is at the distance of 1 k.m. According to prosecution version, this witness with his father was going by a trail in the shape of mend of several fields.

We find that learned Trial Judge has rejected this argument on the ground that villagers used to be in the habit of following old customary ways. Since almost both the routes cover similar distance we find no reason to differ from the reason assigned by the learned Trial Judge to reject this plea of the defence.

On behalf of the surviving appellants, his testimony has been further impeached on the ground that he has written the names of witnesses inter-alia Ram Das s/o Orai in the First Information Report but during cross examination, he has admitted that Ramdas is not son of Orai. Name of his father is Gayadeen, who is brother of Orai. During cross examination he has admitted his mistake. Learned trial Judge was not impressed with this error. We are also of the same opinion because when the written report was dictated, it was not expected that the first informant was in calm and composed state of mind. Both brothers Gayadeen and Orai were dead, we do not think this mistake bears any significance to diminish the veracity of the statement made by this witness.

Further on behalf of the surviving appellants, it has been argued that though this witness has admitted that his younger brother, mother, wife and sister-in-law also reached the spot and saw the occurrence but he did not mention their names in the First Information Report. We do not think this is an omission. In the examination-in-chief, he has not improved his statement. Only during cross examination this fact has been extracted. We do not think this fact can be a ground to impeach the veracity of his statement.

We have gone through his statement very carefully. He is son of the deceased, has admitted his enmity with the surviving appellants, has vividly described the occurrence and he was cross-examined at length and further he has never wavered in his narration of the events he has lodged the F.I.R. promptly as discussed here-in-above, he took injured to the police station as early as possible he has given reason to be present on the spot, therefore, he is a natural and probable witness of the occurrence. It was day hours, therefore, he had every opportunity to see the occurrence.

The only objection which can be taken to ocular version is that in the First Information Report, he has assigned lathi, Ballam and Pharsa to the assailants but in the post-mortem report, very few injuries were found to be incised wounds. We do not think lesser number of incised wounds makes his ocular version untrustworthy. During cross examination, his testimony remained otherwise unblemished. Minor discrepancies and contradictions occurring in this statement would not denude his testimony of its credibility because these are trivial matter, not touching the core of the case (Vinod Kumar Vs. State of Harayana, , 2015 CRLJ 1250 (SC). Therefore, we think that he is a trustworthy witness and the learned trial Judge has correctly believed his testimony.

The second eye witness is Ramdas. He has given reason to be present on the spot. According to him, he was also going to Muraini market. Being passerby, his presence at the spot is natural and probable vide Vikram Singh and others Vs. State of Punjab, , (2010) 3 SCC 56. He was 40-50 steps from the deceased when the deceased was assaulted, hue and cry raised by scuffle must have drawn his attention toward the incident. He had opportunity to see the occurrence. He has successfully faced the test of the cross examination. On behalf of the appellants, one contradiction has been pointed out that in the Court, he has stated that after deceased Samad fell down, he was beaten by lathi only, whereas in his statement under Section 161 Cr.P.C., he has also stated that Samad was also inflicted injuries by sharp edged weapon, though the contradiction touches the occurrence, but it is not expected that a villager would be able to correctly depose the whole of the incident after a gap of approximately two and a half years.

His impartiality has been disputed on the basis of one affidavit, this witness had filed in defence of deceased Abdul Samad but he has given reason for filing the affidavit. We do not think that refusal to depose falsely can be said to be an indication of affinity with the deceased Abdul Samad. Had he really been in the party of Abdul Samad, he would not have been named his witness against Abdul Samad. His testimony inspire our confidence. We treat him to be a trustworthy witness.

Kallu P.W.-3 has also given reason for his presence at the relevant time on the spot. According to him, though he resides in another village, he had gone to Tato for engaging labour to pluck Sarson (mustard). After that he was going to Muraini market to purchase vegetables and on the shouts of assailants and hue and cry caused due to marpeet, he reached the spot and saw the occurrence. His presence is natural and probable. He had opportunity to see the occurrence. During cross examination, only one contradiction occurs; in his statement under Section 161 Cr.P.C., he had stated that from his house, he was going to Muraini market whereas in the court he has stated that from his house he came to Tato to engage labours thereafter he was proceeding to Muraini market. His name finds place in promptly lodged F.I.R. He has frankly stated that his statement under Section 161 Cr.P.C. is incorrect. From reading his testimony, we find that whatever he is stating must have been seen by him. During cross examination, we do not find any substantial discrepancy or variation in his statement touching the occurrence. We also find him to be a trustworthy witness.

On behalf of the appellants credibility of eye witnesses account was also impeached on the basis of contradictions and discrepancies. Whatever contradictions and discrepancies, we have found in their evidence, have already been dealt with by us. Here we would like reference to one omission in the statement of Musa Qasim who in his statement recorded under Section 161 Cr.P.C. has not expressly stated that Ballam was wielded as lathi on the deceased whereas in the court he said so. In the cross examination, he claimed that he mentioned this fact to the investigating officer but why he did not record it, he could not explain. When this omission was pointed out to the investigating officer, Ramesh Chand Dubey, P.W.8, he replied that he did not mention this fact in the statement of Musa Qasim though he had stated that Ballam was used as lathi. According to him, this lapse had occurred due to accidental omission. Since this omission has been admitted by the investigating officer, evidence of Musa Qasim cannot be discarded on this score. He has proved the contradiction occurring in the statement of Kallu, P.W.-3 about the place from where he had proceeded to Muraini market. This contradiction does not touch the occurrence, therefore, in view of law laid down by the Hon''ble Apex Court in the case of Vinod Kumar (supra), we find that on the basis of contradictions and discrepancies, eye witness account given by these three witnesses cannot be discarded.

In view of above, second argument advanced on behalf of the surviving appellants cannot be accepted by us. We find that learned trial Judge has rightly ignored the contradictions occurring in the testimonies of eye witnesses, these testimonies have also been found by us on re-examination and re-valuation to be trustworthy.

Next ground of challenge, that dying declaration has been wrongly believed by the learned trial Judge has two points that it has been recorded in contravention of para 115 of the U.P. Police Regulations and presence of independent persons was not procured by the investigating officers before recording the dying declaration.

On behalf of the State-respondent, these arguments have been replied that when statement of the deceased Abdul Samad was recorded by the investigating officer, it was recorded under Section 161 Cr.P.C. in absence of contemplation of the death of the injured. The learned trial Judge has believed the dying declaration. The dying declaration was recorded by first investigating officer Sri R.P. Chaudhary though he has not been examined by the prosecution and the second investigating officer Ramesh Chandra Dubey, P.W.-8 has proved the dying declaration Exhibit Ka-12. Non-examination of Sri R.P. Chaudhary has been explained by this witness, according to him, R.P. Chaudhary has died. Death of R.P. Chaudhary has not been disputed by the defence before the learned trial Judge.

On behalf of the defence, this witness has been cross examined regarding the dying declaration on the point that why he did not record the statement of the doctor about the fitness of mental condition of Abdul Samad at the time of recording of his statement on 29.2.1986.

We are of the opinion though while making declaration, injured apprehended his death but there is nothing on record that the investigating officer was informed by the doctor or any other person about impending death of the injured. According to the prosecution witnesses the deceased was conscious and he became unconscious only half an hour before he reached the District Hospital, Sultanpur. During cross examination, Musa Qasim, P.W.-1 was asked whether he had informed the investigating officer that his father was in serious condition to which he replied that he was not asked by the investigating officer in this regard. He only informed the investigating officer, he had seen the occurrence and identified the miscreants.

In view of above, there appears substance in the argument advanced on behalf of the State-respondent that the investigating officer merely recorded statement of injured Abdul Samad under Section 161 Cr.P.C. and it was not made in contemplation of the death of the injured. Keeping in view this fact, we do not think the two points submitted before us in reference to admissibility of dying declaration Exhibit Ka-12, survive no more.

Now the question remains when dying declaration Exhibit Ka-12 is admissible in evidence, what weight should be attached to it. Such declaration made shortly before the death before the magistrate and recorded in question and answer form after obtaining doctor''s certificate about fitness of the mental condition of the declarant, has to be placed on higher pedestal than the present one.

One more reason that this dying declaration though admissible in evidence but commands lesser probative force than the dying declaration recorded by the magistrate. It is true that the investigating officer had no time to approach the magistrate and the investigating officer, who recorded the present dying declaration could not be produced before the trial court to state about his satisfaction in reference to mental fitness of the declarant. We propose to proceed in this regard in a cautious manner keeping in view the fact that it has been recorded by the investigating officer.

We find one more reason to treat this dying declaration with a pinch of salt; the dying declaration has been recorded in the manner statements under section 161 Cr.P.C. are recorded. The dying declaration is not in a question answer form. From reading, it appears that the investigating officer either on the basis of written report led the declarant or whatever information could be extracted by him from the injured was reproduced in the manner in which sequence of events comprising the occurrence was narrated in the First Information Report. After giving our anxious consideration we feel it safe to take into consideration the dying declaration of Abdul Samad, Exhibit Ka-12 only for the purpose of corroborating of the ocular version of the occurrence given by the eye-witnesses.

The last ground of challenge is contradiction between the medical evidence and ocular evidence. After perusing the medical evidence and ocular version of the occurrence, we find that the indicated discrepancy about the manner in which the weapons were wielded and the injuries sustained by the injured would not amount to contradiction between these two kinds of evidence. Merely wielding of the weapons and trying to hit a person is different thing and whether the intended blow could be inflicted on the person of the victim is another thing. The eye witness account could disclose only about the weapons used and by whom. The medical evidence would reveal how far attempt of the assailants in inflicting injuries from those weapons succeeded. The Hon''ble Court in the case of State of U.P. Vs. Harbans Sahai; , (1998) 6 SCC 50 has held that testimonies of eye witnesses should be preferred unless medical evidence is so conclusive as to rule out even the possibility of eye-witnesses version to be true. In the present case, such is not the position. The cases referred by learned A.G.A. are also on the point that ocular version has primacy over medical evidence.

We think in the present case, there is no discrepancy between the medical evidence and ocular version of the occurrence, therefore, this ground also does not survive.

No other argument has been raised before us.

In view of above, we are of the opinion that the learned trial Judge has rightly appreciated the evidence and believed the prosecution version. There is no factual infirmity or legal error in his findings. The surviving appellants have been rightly convicted and sentenced by him. Their appeal against their conviction and sentences is without substance and deserves to be dismissed.

The appeal is dismissed.

Appellants are on bail. They are directed to surrender their bail before the Sessions Judge, Sultanpur within 10 days from the date of this judgment. The learned Sessions Judge shall take them into custody and send them to jail to serve their sentences. In case, they do not appear and surrender before him, he shall take steps to procure their attendance in accordance with law and after their arrest shall sent them to jail to serve their sentences.

Office is directed to certify a copy of this judgment to the court concerned forthwith and to send back the lower court record.