Maheshwari Prasad And Another vs State Of U.P

Vinai Kumar Dwivedi, J

Heard Sri Rajrshi Gupta and Sri D.S. Parmar, learned counsel for the appellants; Sri G.N. Kanaujiya, learned A.G.A.-I for the State-respondent; perused the judgment and the Trial Court record.

This criminal appeal has been filed by accused-appellants, Maheshwari Prasad and Adarsh Kumar @ Chandra Bhan Rajpoot, against the judgment and order dated 31.01.2009 of learned Trial Court passed in Sessions Trial No. 103 of 2006 (State v. Maheshwari Prasad and another) arising out of Case Crime No. 219 of 2005, under Section 302/34 IPC, Police Station Muskara, District Hamirpur, Sessions Trial No. 104 of 2006 (State Vs. Maheshwari Prasad) arising out of Case Crime No. 220 of 2005, under Section 25 Arms Act, Police Station Muskara, District Hamirpur and Sessions Trial No. 105 of 2006 (State Vs. Adarsh Kumar @ Chandra Bhan Rajpoot) arising out of Case Crime No. 221 of 2005, under Section 25 Arms Act, Police Station Muskara, District Hamirpur.

Facts of the case as revealed by written report, Exhibit Ka-1, is that informant Watan Singh son of Maniram is resident of 6 Thok, Kasba and Police Station Muskara, District Hamirpur. Watan Singh (PW-1) got scribed written report, Exhibit Ka-1, from Ajit Singh on 05.10.2005 and lodged the same at Police Station Muskara, District Hamirpur. In the written report, Exhibit Ka-1, it is stated by the informant Watan Singh (PW-1) that he is resident of 6 Thok, Kasba Muskara. On 04.10.2005 at about 11:50 P.M., my real brother, Vishwanath, and sister-in-law, Neelibai @ Raj Kumari and their son Mahesh resident of 6 Thok, Kasba Muskara were murdered by my real nephew, Maheshwari son of Vishwanath, and his sons, Adarsh and Neeraj, with fire-arm assault with intention to kill them. Mahesh had illicit relation with Smt. Asha wife of Maheshwari. Due to this reason, these three people jointly murdered them. Since it was a day of Navratri, generator was running in the famous Kalika Devi Temple. A lantern was also illuminated in the compound of Vishwanath. On hearing the sound of the fire-arm, I along with Om Prakash son of Rameshwar resident of Village Damdama, Police Station Khalela, District Mahoba came at the spot. We shouted that three people were firing and video was also playing in the temple. We all collectively chased the accused and identified them clearly. They ran away towards Chandaura Road by firing. Due to this incident, there is anguish in the town. Adarsh, by assaulting Vishwanath with a country-made pistol, caused his death. Neeraj murdered Neelibai @ Raj Kumari, by firing from a country-made pistol. Maheshwari caused the death of Mahesh. The dead bodies of all three deceased were lying in the compound of Vishwanath.

On the basis of the written report, Exhibit Ka-1, lodged by informant Watan Singh (PW-1), Constable Clerk Chandrabhan Dubey (PW-7) registered a first information report at Police Station Muskara on 05.10.2005 at 12:20 A.M. in the night. The above F.I.R. was registered at Case Crime No. 219 of 2005, under Section 302 IPC against accused Maheshwari, Adarsh and Neeraj. After registration of the F.I.R. and receiving the information about the incident, Shailendra Singh (PW-5), the then Station House Officer of Police Station Muskara visited the place of occurrence and investigation of the case was taken by him in his hand. The Investigating Officer took into possession an empty 315-bore cartridge, which was found on the ground near the head of the deceased, Mahesh Rajpoot, and prepared a recovery memo, Exhibit Ka-2. He also took into possession an empty cartridge of 315 bore from the ground of left side of dead body of the deceased, Vishwanath, and prepared recovery memo as Exhibit Ka-3. He also took into possession an empty cartridge of 315 bore from the ground of right side of the head of deceased, Neelibai @ Raj Kumari, and prepared recovery memo, Exhibit Ka-4. The Investigating Officer also took into possession one generator and one lantern which were running and illuminating respectively at the time of the incident and thereafter handed over the same to the President of the Kalika Devi Temple Committee and prepared recovery memo, Exhibit Ka-5. The Investigating Officer Shailendra Singh (PW-5) got prepared the panchayatnama of the dead body of the deceased from S.I. Surya Pal Singh. S.I. Surya Pal Singh prepared the panchayatnama on the dictation of Shailendra Singh (PW-5) of deceased Mahesh Rajpoot, Exhibit Ka-9. He also prepared photo nash, Exhibit Ka-11, and letter to C.M.O., Exhibit Ka-12, and other necessary police papers, which were prepared at the time of the panchayatnama. The panchayatnama of dead body of the deceased, Neelibai @ Raj Kumari, was also prepared as Exhibit Ka-13, and other necessary police papers, such as, photo nash, Exhibit Ka-14, challan nash, Exhibit Ka-15, letter to C.M.O., Exhibit Ka-16, and also prepared other necessary police papers. The panchayatnama of the deceased Vishwanath was also prepared by S.I. Surya Pal Singh on the dictation of the Investigating Officer as Exhibit Ka-17. Apart from the panchayatnama, Exhibit Ka-17, other necessary police papers were also prepared, such as, photo nash, Exhibits Ka-18 and 19, letter to C.M.O. and other necessary police papers were also prepared.

After completing the proceedings of the panchayatnama, the dead bodies of the deceased Mahesh, Neelibai @ Raj Kumari and Vishwanath were sent to District Hospital for conducting post mortem examination. The Investigating Officer also collected bloodstained soil and plain soil from the ground where the dead body of the deceased, Mahesh, was lying and prepared recovery memo as Exhibit Ka-21. Sample of bloodstained soil and plain soil from the place where the dead body of deceased, Neelibai @ Raj Kumari was lying, were also taken into possesion and recovery memo of the same was prepared as Exhibit Ka- 22. Sample of bloodstained and plain soil were also taken from the place where the dead body of the deceased, Vishwanath, was lying and recovery memo was prepared as Exhibit Ka-23. At a distance of 10 steps from the place of occurrence, a towel, full of blood, of sky-blue colour was taken into possession and recovery memo was prepared as Exhibit Ka-24. The Investigating Officer Shailendra Singh (PW-5) arrested the accused Maheshwari Prasad and Adarsh on 08.10.2005 at 11:30 A.M. and on the pointing out of the accused Maheshwari Prasad, from the compound of his house, beneath the guava tree, one country-made pistol of 315 bore and one live cartridge of 315 bore was recovered and taken into possession. On the pointing out of accused Adarsh @ Chandra Bhan Rajpoot, from the same compound from the bushes of bamboo tree, one country-made pistol of 315 bore and two live cartridges of 315 bore were recovered and taken into possession. A recovery memo was prepared by the Investigating Officer of the above murder weapons and cartridges as Exhibit Ka-26. The recovered murder weapon, country-made pistol, empty and live cartridges of 315 bore were sent to the Forensic Science Laboratory for their examination. The Investigating Officer Shailendra Singh (PW-5) prepared the site plan of the place of occurrence, Exhibit Ka-25. The Investigating Officer also recorded the statements of the witnesses under Section 161 Cr.P.C.

After recovery of the country-made pistol of 315 bore along with empty and live cartridges from the accused-appellants, Maheshwari Prasad and Adarsh, Constable Chandrabhan Dubey (PW-7) registered a case at Case Crime No. 220 of 2005, under Section 25 Arms Act against accused-appellant, Maheshwari Prasad, and Case Crime No. 221 of 2005, under Section 25 Arms Act against accused-appellant, Adarsh @ Chandrabhan Rajpoot. The cases against the accused-appellants under Section 25 Arms Act were investigated by S.I. Rampal Singh (PW-6). S.I. Rampal Singh (PW-6) prepared site plan of the recovery of murder weapon (country-made pistol) along with empty and live cartridges as Exhibit Ka-28 and site plan in respect of recovery of the murder weapon of the country-made pistol and empty and live cartridges was prepared by the Investigating Officer Shailendra Singh (PW-5) as Exhibit Ka-27. After transfer of the first Investigating Officer Shailendra Singh (PW-5), investigation of the main Case Crime No. 219 of 2005, under Sections 302/34 IPC was taken by the second Investigating Officer Bhaskar Mishra (PW-8). The second Investigating Officer Bhaskar Mishra (PW-8) recorded the statement of Dr. Dinesh Chandra Tiwari (PW-4), who conducted the autopsy on the dead bodies of the deceased, Mahesh, Neelibai @ Raj Kumari and Vishwanath and after completing all the formalities of the investigation in Case Crime No. 219 of 2005, under Sections 302/34 IPC, submitted charge-sheet against the appellants, Maheshwari Prasad, Chandrabhan Rajpoot and also against accused Neeraj @ Jai Narayan as Exhibit Ka-35. The second Investigating Officer Bhaskar Mishra (PW-8) also investigated the Case Crime Nos. 220 of 2005 and 221 of 2005, both under Sections 25 Arms Act. He took the prosecution sanction in respect of recovery of the illegal country-made pistol from the District Magistrate, Hamirpur against the appellant, Maheshwari Prasad, as Exhibit Ka-36 and he also took prosecution sanction for conducting the case against the appellant, Adarsh Kumar, under Section 25 Arms as Exhibit Ka-37. The second Investigating Officer Bhaskar Mishra (PW-8) after completing all the formalities of the investigation in respect of illegal country-made pistol/murder weapon and empty and live cartridges against the appellants, Maheshwari Prasad and Adarsh Kumar, submitted charge-sheet against Maheshwari Prasad as Exhibit Ka-38 and against Adarsh Kumar as Exhibit Ka-39.

Dr. D.C. Tiwari (PW-4) conducted the post mortem examination of dead body of the deceased, Mahesh, and prepared the post mortem report, Exhibit Ka-6. According to Dr. D.C. Tiwari (PW-4), following ante mortem injuries were found on the dead body of the deceased, Mahesh :-

"(i) Gunshot wound of exit 5 cm x 3 cm on the just anterior of the skull directly in front of the left ear and margins of the wound are everted and clotted blood present around the wound.

(ii) Gunshot wound of entry 1 cm x 1 cm circular in shape on the just anterior of skull directly in front of the right ear, margin of wound is inverted and contused ring is present. Clotted blood present around the wound. This wound communicate to the wound (injury no. 1).

The cause of death is shock and haemorrhage due to ghunshot wound."

Dr. D.C. Tiwari (PW-4) conducted the post mortem examination of the dead body of the deceased, Smt. Neelibai @ Raj Kumari wife of Vishwanath, and prepared the post mortem report, Exhibit Ka-7. According to Dr. D.C. Tiwari (PW-4), following ante mortem injuries were found on the dead body of the deceased, Neelibai :

"(i) Gunshot wound of entry 1.5 cm x 1.5 cm on the right side of forehead 2 cm above from the right eye. Margin of the wound is inverted and contused ring present. Clotted blood present around the wound.

(ii) 5 cm x 5 cm gunshot wound of exit present on the left side of skull at parietal bone. Brain matter is coming out from the wound. Clotted blood present around the wound.

The cause of death is shock and haemorrhage due to ghunshot wound."

Dr. D.C. Tiwari (PW-4) also conducted the post mortem examination on the dead body of the deceased, Vishwanath son of Maniram, and prepared the post mortem report as Exhibit Ka-8. According to Dr. D.C. Tiwari (PW-4), following ante mortem injuries were present on the dead body of the deceased, Vishwanath :

"(i) Gunshot wound of entry 1 cm x 1 cm on the left side of back of chest 3 cm latral from the vertebral column. Margins of wound are inverted and contused ring present.

(ii) Gunshot wound of exit on the centre of chest in front 4 cm above from the xiphisternum, margins of wound are everted and clotted blood present around the wound.

The cause of death is haemorrhage due to ghunshot wound."

Investigating Officer filed the charge-sheets, Exhibits Ka-35, Ka-38 and Ka-39, against the accused-appellants, Maheshwari Prasad and Adarsh Kumar in the concerned Magistrate Court having jurisdiction. Since the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions.

Learned Trial Court framed the charges against the appellants, Maheshwari Prasad and Adarsh @ Chandrabhan, under Section 302 read with Section 34 IPC on 11.07.2006. Charges were also framed against the appellants, Maheshwari Prasad and Adarsh Kumar @ Chandrabhan under Section 25 Arms Act on 11.07.2006 itself. The appellants denied from all charges framed against them and claimed trial.

To substantiate the charges against the appellants, prosecution has adduced informant Watan Singh (PW-1), Om Prakash (PW-2), Ramesh (PW-3) as witnesses of the facts and Dr. D.C. Tiwari (PW-4), Shailendra Singh (PW-5), Ram Pal Singh (PW-6), Chandra Bhan Dubey (PW-7) and Bhaskar Mishra (PW-8) as the formal witnesses. Apart from the above oral evidence, prosecution also relied on documentary evidences from Exhibits Ka-1 to Ka-40 in support of its case.

After recording of the evidence of the prosecution witnesses, Trial Court examined the appellants under Section 313 Cr.P.C. The appellants denied the charges levelled against them. They have answered questions under Section 313 Cr.P.C. put to them in negative. They have also stated that false case was registered against them due to enmity. The Investigating Officer wrongly investigated the case and falsely implicated them for commission of the crime. The accused-appellants have also stated in answer to the question no.23 that witnesses Watan Singh (PW-1) and Ramesh (PW-3) with collusion of the police, falsely implicated them in this case. Watan Singh and Udairaj wanted to take possession of my and my father's house and its compound (Bada) on the basis of the false case but they lost the case in the Court, therefore, forged proceedings were came into light. Now they want to grab the property after sending all our family member in jail. Although the accused-appellants have stated that they will adduce defence evidence, but they did not adduce any evidence in their support.

Learned Trial Court after hearing the arguments of both sides and after perusing the whole evidence available on record found the accused-appellants, Maheshwari Prasad and Adarsh, guilty for commission of the alleged crime. Learned Trial Court convicted the accused-appellants, Maheshwari Prasad and Adarsh Kumar @ Chandrabhan Rajpoot, under Section 302 read with Section 34 IPC with life imprisonment and a fine of Rs. 10,000/- each and in default of payment of the fine, they have to undergo six months' additional imprisonment. The accused-appellants, Maheshwari Prasad and Adarsh Kumar @ Chandrabhan Rajpoot, were also held guilty and convicted under Section 25 Arms Act for three years' rigorous imprisonment and a fine of Rs. 5000/- each and in default of payment of the fine, they were also directed to serve additional imprisonment for three months. All the sentences were directed to run concurrently.

Aggrieved by the judgment and order of conviction and sentence dated 31.01.2009, the accused-appellants have preferred this criminal appeal before this Court.

At the outset, it is worthwhile to mention that it appears from the record of the case that although charge-sheet was also filed against the accused Neeraj @ Jai Narayan, he was found juvenile, therefore, his case was separated and sent for trial to Juvenile Justice Board.

Learned counsel for the accused-appellants has argued that statements of the prosecution witnesses recorded on oath are contrary to each other and therefore, are unreliable. The prosecution story is not only highly improbable but absurd also. Learned counsel has also submitted that informant has falsely implicated the appellants in the present case but the learned Trial Court has not considered the actual facts and circumstances of the case and passed the impugned judgment and order, which is not sustainable in the eyes of law. It is also submitted that there is no independent and reliable witnesses adduced by the prosecution in support of its case. The prosecution witnesses, informant Watan Singh (PW-1), Om Prakash (PW-2) and Ramesh (PW-3) are highly interested witnesses. These witnesses of the prosecution are family members and relatives of the deceased persons in this case. Informant Watan Singh (PW-1) wanted to grab all the properties of the deceased, Vishwanath, after falsely implicating the accused-appellants in this case and sending them in the jail. There was enmity between the informant Watan Singh (PW-1) and accused-appellant, Maheshwari Prasad, in respect of immovable property. Some other accused has killed the deceased persons in the night, but the accused-appellants have been falsely and purposely implicated in this case by the informant Watan Singh (PW-1). Learned Trial Court did not appreciate the evidence in its proper perspective and in a legal manner, and it wrongly relied on evidence that was unreliable and doubtful to hold the accused-appellants guilty for commission of the crime. The finding and reasoning as delivered by the learned Trial Court are also against the evidence and settled principles of law, therefore, the criminal appeal preferred by the appellants is liable to be allowed and impugned judgment and order of conviction and sentence passed by the learned Trial Court dated 31.01.2009 is liable to be set aside.

Per contra, learned A.G.A. for the respondent-State has vehemently opposed the arguments of learned counsel for the appellants and submitted that the accused-appellants and deceased persons had been living in the same and one compound (ahata) adjoining each other's house. The accused-appellants, taking advantage of the occasion, being the first day of Navratri, when videos were playing and generators were running at the temple at about 11:50 P.M., murdered all the deceased persons, with a view that the sound of the gunfire would not be heard by anyone due to the noise from the generators and videos. The accused-appellants have chosen a very appropriate and useful time for commission of the offence. The accused-appellants by murdering the deceased persons have betrayed the very close relations of father and son and also grandfathers and grandsons. Prosecution by adducing informant Watan Singh (PW-1), Om Prakash (PW-2) and Ramesh (PW-3) has proved its case beyond reasonable doubt. Although Om Prakash (PW-2) has turned hostile and has not supported the prosecution case but the informant Watan Singh (PW-1) and Ramesh (PW-3) have fully supported the prosecution case by their evidence. Allegations as levelled against the accused-appellants have been fully proved by the evidence of the prosecution. Learned Trial Court has appreciated the evidence in proper perspective and in legal manner. The finding and reasoning of the learned Trial Court are based on the cogent evidence and also on the settled principles of law. There is no infirmity, illegality or perversity in the impugned judgment and order of the learned Trial Court, therefore, criminal appeal filed by the accused-appellants is devoid of merits and is liable to be rejected.

In the light of the rival submissions of learned counsel for both the parties and from perusal of the written report, Exhibit Ka-1, we find that incident is said to be happened on 04.10.2005 at 11:50 P.M. and report about the incident has been lodged by the informant Watan Singh (PW-1) at Police Station Muskara, District Hamirpur on 05.10.2005 at 12:20 A.M. in the night. Meaning thereby, within half an hour, without any delay and afterthoughts, F.I.R. has been registered by the informant Watan Singh (PW-1) at the police station naming accused-appellants, Maheshwari Prasad, Adarsh and Neeraj as accused persons, therefore, we find no delay in lodging the F.I.R. at the police station after happening of the incident.

Apart from perusal of the written report, Exhibit Ka-1, we have also perused and gone through the evidence of the informant Watan Singh (PW-1), Om Prakash (PW-2) and Ramesh (PW-3).

From the perusal of the evidence of the prosecution witnesses, we find that informant Watan Singh (PW-1), who is an eye-witness of the incident and has seen commission of the crime by the accused-appellants, has stated in his evidence in the Court corroborating the statements as he has written in the written report, Exhibit Ka-1. From perusal of the evidence of informant Watan Singh (PW-1), it is revealed that incident of this case has happened on 04.10.2025 at about 11:50 P.M. in the night and it was a first day of Navratri when idol of Goddess Durga is being installed in the pandals and worshiped. Due to being the first day of Navratri, at Kalika Devi Temple in the town, Navratri ceremony was being organized and a large number of people were gathered there to celebrate Navratri pooja of Kalika Devi. For the entertainment of the devotee, videos were being playing showing religious films. There were 2-3 generators running for sufficient electricity for the night ceremony and convenience of the people gathered there. On the date of the incident, informant Watan Singh (PW-1) was also sitting at the platform (chabutra) of the Kalika Devi Temple. According to the evidence of informant Watan Singh (PW-1), it is revealed that house of Vishwanath is situated in Ahata (compound). On the southern direction of the Ahata (compound), deceased Vishwanath, his wife Neelibai @ Raj Kumari and his son Mahesh were living. On opposite direction, accused persons were living. On that date, deceased Mahesh, nephew of this witness, returned from Kanpur. He talked with this witness and as soon as he entered in the compound, then sound was being heard. On hearing the sound, this witness ran towards the compound then he saw that accused Maheshwari Prasad, Adarsh and Neeraj have caught hold Mahesh and made him to fall on the ground. Accused Maheshwari Prasad assaulted Mahesh with country-made pistol and fired upon him from his country-made pistol. Then Neelibai has come to intervene then accused Neeraj with his country-made pistol fired upon her. Accused Adarsh shot from his country-made pistol at Vishwanath. After receiving gunshot injury, all the above three persons died on the spot. Accused after firing ran away towards Chandaura Road.

According to this witness, in the compound (ahata), a lantern was illuminating and light of the bulb from the temple was also reaching. According to this witness, he heard that deceased Mahesh had illicit relations with Asha wife of accused Maheshwari. From perusal of the evidence of this witness, it is revealed that accused Maheshwari Prasad was son of deceased Vishwanath and deceased Neelibai @ Raj Kumari was the mother and deceased Mahesh was brother of accused, Maheshwari Prasad. Accused Adarsh Kumar @ Chandrabhan and Neeraj @ Jai Narayan were sons of accused Maheshwari Prasad.

From this fact, it is revealed that accused Maheshwari Prasad, with his own sons Adarsh and Neeraj have murdered his real father, Vishwanath, his real mother, Neelibai @ Raj Kumari, and also murdered his real brother, Mahesh. It is also revealed from the evidence of this witness that there was illicit relations between the deceased, Mahesh, and Asha, wife of accused Maheshwari Prasad, which appears to be the motive for commission of the alleged crime. Apart from the above, from the evidence of this witness, it is also revealed that the informant, Watan Singh (PW-1), is the younger brother of the deceased, Vishwanath. It is also revealed that there was also a dispute in respect of the compound in which the deceased and accused persons were living. A case, Watan Singh v. Maniram, was filed in respect of the land of the compound. From the evidence of this witness, it is also revealed that 04.10.2005, the date on which the incident occurred, was the first day of Navratri, and on that day, the idol of Goddess Durga was installed in the pandals. This witness has stated that he had heard the sound of the fire, and at that time, this witness was not in the ground of the temple, but he was sitting at the platform of the temple. When, after hearing the sound of the fire, he reached at the gate of Vishwanath, then he saw the occurrence committed by the accused persons.

It is also revealed from the evidence of this witness Watan Singh (PW-1) and from perusal of the written report, Exhibit Ka-1, that the light of a lantern and the light of a bulb, which was coming from the temple, have been mentioned in the written report, Exhibit Ka-1 and in the evidence of this witness also. Thus, we find that at the time of the happening of the incident at 11:50 p.m. in the night, there was sufficient electricity/light to identify the accused persons, who were committing the crime. Apart from the above facts, it is also worthwhile to mention here that the accused persons and the deceased persons had been living in the same compound (ahata). Accused Maheshwari Prasad was the son of the deceased, Vishwanath, and accused, Adarsh and Neeraj, were the grandsons of Vishwanath. The deceased Neelibai @ Raj Kumari was the mother of the accused, Maheshwari Prasad, and the grandmother of Adarsh and Neeraj. The deceased Mahesh was the uncle of accused Adarsh and Neeraj.

Although next witness Om Prakash (PW-2) has turned hostile and has not supported the prosecution story, however, in spite of the hostile evidence of Om Prakash (PW-2), this fact is established that accused Maheshwari Prasad was the son of deceased, Vishwanath. On the date of incident, in the night at 11:50 PM, when ceremony was going on at the temple, the temple was decorated, the generator was running, the bulb was illuminating, and there was sufficient light, and the fact that murder of deceased Vishwanath, his wife Neelibai @ Raj Kumari, and his son Mahesh has been committed on that day and time, this fact is clearly proved. However, this witness has denied that he had not seen any person committing the murder of the deceased persons. According to this witness, he has seen accused persons running towards Chandaura Road by firing, but he could not identify them. However, one important fact is revealed from the evidence of this witness that before this witness, informant Watan Singh (PW-1) had reached at the place of occurrence. From the evidence of this witness, it is revealed that there was partition dispute of land between the deceased Vishwanath and his son Maheshwari Prasad. Deceased Mahesh was unmarried brother of accused Maheshwari Prasad. This witness has accepted that it is true that deceased Mahesh was a man of loose character and a man with the habit of consuming intoxicants. This witness has clearly accepted in his cross-examination that after happening of the incident, accused Maheshwari Prasad and his sons, Adarsh and Neeraj, have not reached near the dead bodies of the deceased in the ahata (compound). This witness was unable to tell this fact that even after murder of real mother, father and brother and even living in the same compound, why accused persons have not reached near the dead bodies of the deceased and why they have left the ahata and ran away. According to this witness, on the date of incident, which was the first day of Navratri, this witness came at town Muskara to see the Durga Pooja.

Thus, even from the hostile evidence of this witness, Om Prakash (PW-2), this fact is established that on the date and time of the incident, deceased Vishwanath, his wife Neelibai @ Raj Kumari, and his younger son Mahesh had been murdered and even after the murder of the above three persons, accused Maheshwari Prasad and his both sons, Adarsh and Neeraj, have not reached near the dead bodies of the deceased; even they were living in the same compound. This fact is also clearly established from the evidence of this witness that there was a land dispute between the deceased, Vishwanath, and his son, Maheshwari Prasad, in respect of partition of the land. This fact also established strong motive against the accused persons, especially accused Maheshwari Prasad for commission of the crime and eliminating his father, deceased Vishwanath, his mother Neelibai @ Raj Kumari, and his unmarried younger brother, Mahesh, with intention that after their death, being nearest heir, they will automatically become owner of the properties of the deceased, Vishwanath, and deceased, Mahesh. This is being strong motive against the accused-appellants for commission of the crime, which is levelled and is proved by the hostile evidence of Om Prakash (PW-2).

From perusal of the evidence of Ramesh (PW-3), we find that, according to the prosecution, this witness is also an eye-witness of the incident. This witness Ramesh is brother-in-law (behnoi) of accused Maheshwari Prasad, and accused Maheshwari Prasad is brother-in-law (sala) of the witness, Ramesh. From perusal of the evidence of this witness, it is revealed that when on hearing the sound of fire, this witness had seen towards the gate of the compound (ahata), he saw that the accused, Maheshwari Prasad, and his sons, Adarsh and Neeraj, were holding country-made pistols in their hands. Accused Maheshwari Prasad has thrown the deceased Mahesh on the ground and fired gunshot upon him, accused Adarsh has fired gunshot at deceased Vishwanath and accused Neeraj has fired gunshot at Neelibai @ Raj Kumari. After receiving gunshot injuries, all the above three persons had died on the spot. When this witness reached at the spot, then accused persons by firing ran towards Chandaura Road. According to this witness, at the time of incident and at the place of occurrence, there was light of the bulb from the generator and, in the compound (ahata) of the Vishwanath, a lantern was also illuminating. According to the evidence of this witness, Investigating Officer had recovered three empty cartridges near the ground where the dead bodies of the deceased were lying and prepared recovery memo.

During the cross-examination of this case, he stated that he stayed in the house of his father-in-law, Vishwanath. From the evidence of this witness, it is established that on the date and time of the incident, this witness was present near the place of occurrence for watching Navratri ceremony at the Kalika Devi Temple. From the evidence of this witness, this fact is corroborated that on the night of the incident, 2-3 generators were running and those generators were kept on the north side of the pond and one generator was kept on the backside of the pandal. Religious films were playing in the video. From the statement of this witness, it is also revealed that after happening of the incident about 12:15 A.M. in the night, police had reached at the place of occurrence. From perusal of the cross-examination of this witness, it appears that according to this witness, Investigating Officer had recorded the statement of this witness on 05.10.2007 at 06:00 A.M. in the morning. However, from perusal of the case diary, we find that in reality, Investigating Officer had recorded the statement of this witness on 05.10.2005 itself. Thus, it appears that at the time of recording the evidence of this witness, the reader or the typist who was recording the statement of this witness, has wrongly written 05.10.2007 in place of 05.10.2005. This fact indicates that incident happened on 04.10.2005 at 11:50 p.m. in the night, and the Investigating Officer on the next day on 05.10.2005 at 06:00 A.M. in the morning had recorded the statement of this witness under Section 161 Cr.P.C. Recording of evidence of this witness on 05.10.2005 at 06:00 A.M. in the morning in the compound of deceased Vishwanath established this fact that this witness was present at the time of happening of the incident at the house of his father-in-law, deceased Vishwanath, and this witness was also present at the place of the occurrence. This fact clearly proved the presence of this witness at the place of occurrence and seeing the commission of the crime by the accused persons with his own eyes. According to this witness, accused persons have shot on the deceased, Vishwanath, Neelibai @ Raj Kumari and Mahesh, with country-made pistols. According to this witness, accused persons in all fired three shots. From the evidence of this witness, it is revealed that this witness had taken food with Moolchandra. This witness has clearly stated that Vishwanath and Neelibai @ Raj Kumari had taken food with us. Neelibai @ Raj Kumari had given food to me. After taking food, I and Moolchandra had come into pandal at about 08:00 P.M.

From perusal of the evidence of this witness, it is revealed that after death of deceased, Vishwanath, Neelibai @ Raj Kumari and Mahesh, this witness has also filed an application for mutation in respect of the property of the deceased, Vishwanath, in his name and in the names of his wife and his sister-in-law. Evidence of this witness also revealed that accused Maheshwari Prasad had also filed a case against his wife and sister-in-law in the Court of Civil Judge, Senior Division, and that case was pending in the Court of Civil Judge, Senior Division.

Thus, from perusal of the evidence of Ramesh (PW-3), it is revealed that this witness is an eye-witness of the incident because when the incident happened on 04.10.2005 at 11:50 P.M. in the night in the compound of deceased Vishwanath and accused persons, he was present there. This witness has seen commission of the crime by the accused persons. From perusal of the evidence of this witness, it is clearly revealed that this witness is a natural witness and he has stated in the Court in a very simple words about happening of the incident. This witness has clearly accepted this fact that after the death of the deceased, Vishwanath, Neelibai @ Raj Kumari and Mahesh, this witness has filed an application for mutation of the property in his name and in the names of his wife and sister-in-law. It is also revealed that this witness is son-in-law of the deceased, Vishwanath, and brother-in-law of the accused, Maheshwari Prasad. Meaning thereby, daughter of deceased, Vishwanath, and sister of accused, Maheshwari Prasad, was married with this witness. This witness is a close relative of both sides. We find no ground to suspect and doubt the statement and evidence of this witness as relative witness, because this witness is a close relative of both sides and is related to both sides by his marriage with the daughter of deceased, Vishwanath, and sister of accused, Maheshwari Prasad. There is no reason or ground to disbelieve and doubt the evidence of this witness. We find that this witness has filed an application after death of Vishwanath, Neelibai @ Raj Kumari and Mahesh for endorsing the names of this witness, his wife, and his sister-in-law in respect of the land in the Revenue Court, is no reasonable ground to doubt and disbelieve the statement of this reliable witness. It is a natural fact that when a person dies by any means, whether natural or unnatural, their nearby relatives would naturally file an application for mutation of property in their names. Therefore, solely on that ground, we could not doubt or disbelieve the reliable, trusthworthy and creditworthy evidence of this witness, Ramesh (PW-3). In other words, we find the evidence of this witness fully reliable, truthful that inspires confidence.

In the light of the evidence of informant Watan Singh (PW-1), Om Prakash (PW-2), and Ramesh (PW-3), as we have perused and discussed, we find that although informant Watan Singh (PW-1) is younger brother of deceased, Vishwanath, and uncle of accused, Maheshwari Prasad, in this way, Watan Singh (PW-1) is related by blood with both deceased persons and accused persons. Only on this ground that informant Watan Singh (PW-1) is family member of the deceased persons and accused persons. We cannot doubt and reject the evidence of this important eye-witness. There is no law of this kind that prescribes that evidence of related witness and family members must be rejected. According to the settled principles of law in case of related witness and family members as a witness, only this requires that evidence of that kind of witness must be carefully and deeply scrutinized and appreciated. If after deep scrutiny and careful appreciation of the evidence of interested witnesses or family members as a witnesses, Court find that their evidence is truthful and testimony is creditworthy and inspires confidence, then in this condition, Court can rely and convict accused persons on the basis of the evidence of related witness and family members as a witness. There is no evidence of this kind that informant Watan Singh (PW-1) is interested in conviction of the appellants for commission of the crime.

Hon'ble Supreme Court in the case of State of Rajasthan v. Smt. Kalki and Another, (1981) 2 SCC 752, has held on interested and related witnesses in para 7 that;

"7. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased", and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the respondents."

Hon'ble Supreme Court in the case of Harbans Kaur and Another v. State of Haryana, (2005) 9 SCC 195 in para 7, has held that;

"7. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. No evidence has been led in this regard."

In the same way, Hon'ble Supreme Court in the case of Sucha Singh and Another v. State of Punjab, (2003) 7 SCC 643, has held in para 13 that;

"13. .................................... Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."

Thus, in the light of the law as propounded by the Hon'ble Supreme Court, it is clear that being an interested witness or a family member is no ground to doubt and disbelieve the evidence of related witnesses and family members as witnesses. What is required is that the Court must be careful and alert, and a deep scrutiny and cautious appreciation of evidence is only required in that kind of case. If the Court finds that the evidence of the related witnesses and family members, who are witnesses, indicates that they are eye-witnesses of the incident, their evidence are wholly reliable, that inspire confidence, then the Court, without any hesitation, can convict the accused for the commission of the crime.

In the case at hand, We find that although the informant, Watan Singh (PW-1), is a family member of the deceased and the accused persons, and Ramesh (PW-3) is a close relative of both sides and is related by blood to the accused persons as well as to the deceased, being the son-in-law of the deceased Vishwanath. In this case, Ramesh (PW-3) would only speak true facts about the happening of the incident and who committed the crime. We, after appreciation of the evidence of both the witnesses, find that

As far as arguments of learned counsel for the appellants that there are contradictions between two eye-witnesses is concerned, we find that those contradictions that are indicated by learned counsel for the appellants are very minor and trivial in nature. Whatever contradictions and omissions exist are minor and trivial in nature, and we find that they are not material or major contradictions. According to human nature and tendency, some minor contradictions and omissions are likely to occur in the testimony of any witness.

Hon'ble Supreme Court in the case of Brahm Swaroop and Another v. State of Uttar Pradesh, (2011) 6 SCC 288 has held in para 32 that;

"32. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the Court to reject the evidence in its entirety. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." Difference in some minor details, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witnesses. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses."

Evidence of Ramesh (PW-3) also finds corroboration from the evidence of Dr. D.C. Tiwari (PW-4), who conducted the postmortem examination of deceased Mahesh, Neelibai @ Raj Kumari, and Vishwanath. From the perusal of the postmortem report, Exhibit Ka-6, of deceased Mahesh, we find that injury no. 1 was exit wound of the gunshot which was found at the skull in front of the left ear of the deceased Mahesh and the injury no. 2 was the entry wound of the gunshot which was found at the skull in front of the right ear. That indicates that one bullet shot was fired at the temporal bone at the head of the deceased Mahesh which entered from the right ear from the temporal region and the same exited on the left side of left ear on the temporal region. The postmortem report of deceased, Neelibai @ Raj Kumari (Exhibit Ka-7), revealed that one gunshot entry wound was found on the forehead towards the right eye, 2 cm above the right eye, that bullet exited from the parietal bone of the skull from the left side. From perusal of the post mortem report of the deceased, Vishwanath, Exhibit Ka-8, we find that only one bullet shot had been found on the backside 3 cm left from the backbone. That bullet shot exited from the center of the chest. Thus, we find that one bullet shot was fired at deceased Mahesh, one bullet shot was fired at deceased Neelibai @ Raj Kumari, and one bullet shot was fired at deceased Vishwanath. This fact indicates that the evidence of Ramesh (PW-3) found to be true as this witness has stated only three gunshots were fired towards the deceased.

From perusal of the record, we find that the weapons of murder were recovered on the pointing out of the accused, Maheshwari Prasad and Adarsh, from the compound of the deceased and accused persons, and also the empty cartridges were recovered and taken into possession from the place where the dead bodies of the deceased were lying. Those empty cartridges which were recovered near the dead bodies of the deceased, country-made pistols and live cartridges recovered at the pointing out of the accused Maheshwari Prasad and Adarsh, were sent to the Forensic Science Laboratory for their examination. At the pointing out of the accused persons, Maheshwari Prasad and Adarsh, incriminating articles, weapon of murder, and cartridges were recovered from the compound of the accused persons and deceased persons where they were living. This compound is not a public place where every person could easily come and go at their will. Since compound of any person is in the exclusive possession of the owner, therefore, no person could dare to come and go without permission of the owner in the compound. In the light of above facts, we are unable to believe the arguments of learned counsel for the appellants in this respect that weapons of murder were recovered from a public place or from open place.

The report of the Forensic Science Laboratory, Agra, Uttar Pradesh, is available on the record as Paper Nos. 30-Ka/2 and 30-Ka/3. Recovered empty cartridge of 315 bore which was being near the dead body of the deceased Vishwanath was marked as EC-1. Empty cartridge of 315 bore which was recovered near the dead body of deceased Neelibai @ Raj Kumari, was marked as EC-2 and empty cartridge of 315 bore, which was recovered from nearby the place where dead body of deceased Mahesh was lying, was marked as EC-3. Recovered country-made pistol at the pointing out of the accused Maheshwari Prasad and one live cartridge of 315 bore were marked as 1/2006 and LC-1 respectively. In the same way, recovered country-made pistol of 315 bore and two live cartridges of 315 bore at the pointing out of the accused Adarsh Kumar are marked as 2/2006 and LC-2 and LC-3. In the same way, recovered country-made pistol and two live cartridges of 315 bore at the pointing out of the accused Neeraj was marked as 3/2006 and LC-4 and LC-5. In the examination result of Forensic Science Laboratory, Agra, Uttar Pradesh, disputed cartridge EC-1 was found fired from marked country-made pistol 2/2006, and disputed cartridge EC-2 was found fired from country-made pistol marked as 3/2006, and disputed cartridge EC-3 was found fired from country-made pistol marked as 1/2006. Thus, from the examination report of Forensic Science Laboratory, it is clear that empty cartridges which were recovered from the place near the dead body of the deceased persons were found fired by the country-made pistols, which were recovered at the pointing out of the accused persons from their compound. In other words, examination report of the Forensic Science Laboratory, Agra, Uttar Pradesh corroborates this fact that those empty cartridges which were lying near the dead bodies of the deceased were fired from the country-made pistols which were recovered at the pointing out of the accused persons from their compound. It means and indicates that illegal country-made pistols which were recovered at the pointing out of the accused persons from their compound, empty cartridges which were recovered near the dead bodies of the deceased persons were found used as weapons of murder by the accused persons in the commission of the alleged crime. Thus, we find that weapons of murder, which were recovered from the possession of the accused-appellants on their pointing out, were used in the commission of the murder of the deceased persons by the accused persons. Therefore, in the light of above facts and evidence, arguments of learned counsel for the appellants in this regard is not sustainable.

We have also gone through the judgment and order of the learned Trial Court dated 31.01.2009. From perusal of the findings and reasoning as given by the learned Trial Court, we find that the learned Trial Court has fully discussed whole evidence as available on the record. Learned Trial Court has also discussed and given a finding that accused-appellants, with pre-plan, pre-meditation, and prior concert, prepared the plan for commission of the heinous crime and murdered the deceased persons. This fact is revealed from the facts of the case that accused-appellants, Maheshwari Prasad and Adarsh, with other accused, Neeraj, prepared a plan of this murder. They procured illegal country-made pistols of 315 bore and also live cartridges of 315 bore. Both accused-appellants, Maheshwari Prasad and Adarsh, with juvenile accused, Neeraj @ Jai Narayan, dragged each deceased persons and assaulted and fired upon them with their respective country-made pistols. This fact clearly revealed that there was clear-cut pre-plan, pre-meditation and prior concert among the accused persons for commission of the alleged crime. Apart from the above facts, the accused-appellants have chosen the date of incident as the first date of Navratri of Durga Pooja. The date of incident, i.e., 04.10.2005 was the first day of Navratri and at the Kalika Devi Temple, 2-3 generators were running for sufficient light and religious films were also running. There was crowd gathered for participating in the first day of Navratri Pooja and the appellants have chosen the time of incident as 11:50 P.M. of the night. The intention and purpose of the appellants were that on the first day of Navratri of Durga Pooja, after 11:00 p.m. in the night, when generators were running and making noise, and videos were also playing showing the religious pictures, with a view that at this time, sound of the fire from the country-made pistols will not reach to the peoples and accused-appellants will be able to execute their plan easily. The appellants have hatched a plan with pre-plan, pre-meditation, and prior concert and executed the plan in which three persons were killed by them by their well-prepared and managed plan. Thus, we find that the Trial Court has fully discussed all the evidence and based its finding on cogent and reliable evidence in this regard. From perusal of the finding and reasoning of the Trial Court, we find that the Trial Court has appreciated evidence in a proper perspective and in legal manner and according to the settled principles of law in this regard. We find no illegality or perversity in the impugned judgment and order dated 31.01.2009 of conviction and sentence, therefore, we find no force in the arguments of learned counsel for the appellants in this respect.

In this view of the matter, we find that the criminal appeal of the accused-appellants is devoid of merits and it lacks force. Hence, we are of the view that the criminal appeal of the accused-appellants is liable to be dismissed and the judgment and order of conviction and sentence dated 31.01.2009 is liable to be affirmed.

In the result, the criminal appeal is dismissed. The impugned judgment and order dated 31.01.2009 passed by the learned Trial Court is affirmed. The appellants, Maheshwari Prasad and Adarsh @ Chandrabhan Rajpoot, are in jail. They shall remain in jail to serve out the sentence awarded to them by the Trial Court.

Let a copy of this judgment be transmitted to the Trial Court along with the Trial Court records forthwith for necessary compliance.