Ombir Singh vs State of U.P.

Rakesh Tiwari and A.K. Roopanwal, JJ.—Heard Sri. Jitendra Kumar, learned Counsel for the Appellant and Sri. K.N. Bajpai, learned A.G.A. assisted by Sri. Rajeev Lochan Shukla, learned Counsel for the complainant and perused the record.

This criminal appeal has been filed challenging the validity and correctness of the judgment and order of conviction and sentence dated 30.10.2007 recorded by Additional Sessions Judge, Court No. 1, Etawah in Sessions Trial No. 158 of 2004, State v. Ombir Singh and Anr. whereby the Court convicted the Appellant u/s 302, I.P.C. read with Section 34, I.P.C. and Section 27, Arms Act sentencing him to life imprisonment with fine of Rs. 10,000. It is further provided in the order that in default of payment of fine, further rigorous imprisonment for one year for the offence punishable u/s 302, I.P.C. read with Section 34, I.P.C.

The Appellant was also sentenced to three years'' rigorous imprisonment and fine of Rs. 1,000 for the offence punishable u/s 27, Arms Act and in default of payment of fine, further rigorous imprisonment for two months.

The first information report of the incident was lodged by Dinesh Singh, brother of deceased Munna on 15.7.1999 at 9.20 a.m., at Police Station Civil Lines, Etawah. It was averred in the written report that on 15.7.1999 at about 9 a.m. the complainant alongwith his brother Abhaiveer Singh Bhadoria alias Munna, Mukesh Singh and Virendra Kumar Chaudhary, came just ahead of Shastri Chauraha in the town of Etawah by Tata Sumo No. UP 75-B 4489. They all alighted from the vehicle as Munna was scheduled to meet Shivraj Singh Sengar and they all started towards his house. Munna was ahead of the complainant and others. As soon as Munna reached near the house of Shivraj Singh Sengar, accused-Appellant Ombir Singh and Shivbir Singh armed with rifles, Rockey also armed with rifle and Pramod Singh armed with pistol, appeared there. They all belong to the village of the complainant. On the exhortation of Shivbir Singh that Munna be killed, they all opened fire on Munna, due to which he received injuries and died on the spot near the handpump. It is also stated that when the complainant and others tried to come to the rescue of Munna, they were challenged by the accused persons, hence they retracted. Thereafter, the assailants ran way in the direction from which they had come.

On the basis of first information report, a case was registered at G.D. No. 17 in the police station.

Investigation of the case was taken up by Sri Vikramjeet Singh, the then Station Officer, P.S. Civil Lines, Etawah. He recorded the statement of constable Moharrir Charan Singh who was scribe of the first information report and the G.D. aforesaid. Thereafter, he also recorded statement of the complainant on the spot and inspected the place of occurrence and prepared the site plan Exh. Ka-11. Panchayatnama and other connected papers under his supervision from S.I. Nanhumal Nigam were then prepared. He also prepared memo Exhibit Ka-4 in respect of one empty and one live cartridges of .315 bore. Another memo for broken spectacles and a pair of chappal of the deceased and a memo of plain and blood stained earth collected from the spot/place of occurrence prepared. After recording statements of eye-witnesses Mukesh Singh and Virendra Kumar Chaudhary, he took the blood stained clothes of the complainant, also witnesses Mukesh Singh and Virendra Kumar Chaudhary and prepared its memo Exh. Ka-15. Statements of the witnesses of the inquest report and also of S.I. Nanhu Mal Nigam, who had prepared panchayatnama and of the persons, who had taken dead body of the deceased for post-mortem, were also recorded.

As the accused were absconding from 15.7.1999 to 22.7.1999, hence process for their arrest was obtained from the Court. Later on investigation of the case was transferred to C.B.C.I.D. which was lastly conducted by Inspector, Baldhari Singh of C.B.C.I.D. who recorded statement of the previous Investigating Officer, Surendra Pal Singh, statements of accused Ombir Singh and of Jaiveer Singh, Devendra Singh, Shailendra Singh, Indra Pal Singh and Savita Bhadoria, wife of the deceased, complainant Dinesh Singh, his father Arjun Singh, Virendra Kumar Chaudhary, Devendra Singh Bhadoria, Shivraj Singh and of Smt. Vidya Bhadoria and also perused the investigation previously conducted.

The cartridges recovered from the place of the occurrence were sent for opinion of the ballistic expert after taking concerned weapons from the possession of the accused. After concluding the investigation, charge-sheet was submitted.

The accused-Appellant was charged separately for the offences punishable u/s 302, I.P.C. read with Section 34, I.P.C. and Section 27, Arms Act by the trial Judge on 28.8.2004. He had received the case after committal by the concerned Magistrate.

The prosecution in order to prove the charges, examined P.W. 1 Dinesh Singh (complainant) and P.W. 2 Mukesh Singh, the eye-witnesses, P.W. 3 Dr. Balbir Singh, who conducted post-mortem examination on the dead body of the deceased, P.W. 4 constable Charan Singh, who wrote chik F.I.R. and G.D. of registration of the case, P.W. 5 Constable Hardeo Bahadur Singh, who had taken dead body of the deceased for post-mortem, P.W. 6 Head Constable Maujam Singh-shadow of the Appellant, P.W. 7 S.I. Nanhumal Nigam, who prepared panchayatnama and other relevant papers concerning dead body of the deceased, P.W. 8 S.O. Vikramjeet Singh, Investigating Officer of the case and P.W. 9 Inspector Baldhari Singh of C.B.C.I.D. who conducted last investigation in the case, were also examined by the prosecution as formal witnesses. C.W. 1 Indrapal Singh, C.W. 2 Rajesh Babu and C.W. 3 Onkar Singh were also examined.

Statement of the Appellant was recorded u/s 313, Code of Criminal Procedure in which though he denied the prosecution case, however, admitted that Maujam Singh was his shadow at the time of the occurrence. In his aforesaid statement the Appellant also stated that Vinod Singh of his village was murdered by the complainant Dinesh Singh and his family members, to which he-the Appellant, was an eye-witness and had deposed against them before the Investigating Officer. In this regard, he was also shown to be an eye-witness in the charge-sheet submitted by the police in that case. Due to which the complainant was inimical to him and therefore had falsely implicated him in the case.

The accused-Appellant did not lead any evidence in his defence.

The trial court after assessment of the evidence and hearing the parties, found the case u/s 302, I.P.C. read with Section 34, I.P.C. and 27, Arms Act proved beyond all reasonable doubts against the Appellant and accordingly convicted and sentenced him as stated above.

Learned Counsel for the Appellant has urged before us that the F.I.R. is ante-time; that according to the action taken by the Field Unit, Etawah as said by C.W. 2 as well as C.W. 3 the dead body of the deceased was shown to be of an unknown person, that the investigation conducted by the first Investigating Officer, P.W. 8 Vikramjit Singh was ''farji'' and against the law ; and that the presence of Dinesh Singh, P.W. 1 and eye-witness Mukesh Singh, P.W. 2 as well as C.W. 1 Indrapal Singh at the place of occurrence at 11 O''clock was factually incorrect.

It is also urged that the investigation done by the Investigating Officer, Baldhari Singh, P.W. 9 was against the law and the story of recovery of used and live cartridges are based on imagination and that the aforesaid two cartridges had been shown to confuse the Court.

Learned Counsel for the Appellant has urged that the first information report (Ex. Ka-1) was ante-time. He submits that the original F.I.R. has been suppressed for the reason that the time which the first Investigating Officer Vikramjit Singh, P.W. 8 states to have reached the place of occurrence, admits that he was informed by the persons present there that higher officials and the team of the Field Unit had arrived at the spot appear to be contradictory. It is stated that from the office of the S.S.P. no information is said to have been received by him and inspite of receiving the letter from the Field Unit regarding the photographs of the deceased (13/C-1 to 13/C-13) as well as blood soaked earth and normal earth collected from the spot he did not receive the same from the Field Unit as such it was not mentioned in the case diary which shows that Vikramjit Singh, the first Investigating Officer had reached after the Field Unit had finished its job and photographs could not have been taken of a sealed dead body. Furthermore, that the original chik F.I.R. (Ex. Ka-1) could reach the Chief Judicial Magistrate, Etawah from police station Civil Lines after 11 days shows that it was ante-time; that even according to Nanhumal, P.W. 7 who had filled up the inquest form (Ex-1), the F.I.R. or its copy as well as copy of the G.D. of registration of the case was not available to him ; that the copy of the F.I.R. was also not sent to the Doctor at the time of post-mortem which is apparent from the evidence of Dr. Balbir Singh, P.W. 3; that according to the report of the Field Unit and the evidence of C.W. 2 Rakesh Babu the dead body of deceased Abhavyvir Singh alias Munna was of unknown person ; that according to the learned Counsel for the Appellant the dead body of the deceased had remained lying there till 2 p.m. He states that it is clear from the record that the police team had shown ''rawangi'' to the place of occurrence at about 10.30 a.m. and reached there at about 10.50 a.m. on 15.7.1999 ; that time upto 15 to 20 minutes had been consumed to disperse the crowd, taking of photographs of the dead body and thereafter proceedings for inquest and taking earth sample etc. were taken and the team remained there till 2 O''clock on the spot. He submits that there was no occasion for the photographer to have recorded the photograph of an unknown person for Munna alias Abhavyir Singh was well known. All these show that the proceedings were ante time and were not in accordance with law.

He has relied upon a news item published in Newspaper "Dainik Jagaran" dated 16th July, 1999 and submits that the presence of Dinesh Singh and Mukesh Singh, who are said to be the eye-witnesses is suspicious and name of Shivvir Singh, the elder brother of accused Ombir Singh has been implicated and for this reason it has been shown that he had called for killing the deceased stating that the deceased brings the stay every time. In this regard he has relied upon Case No. 17 of 1993, u/s 302, I.P.C. P.S. Badhakpura in which co-accused Pramod Singh had been acquitted by the Sessions Court for the murder of Vinod. Pramod Singh is alleged to be the complainant in that case and Ombir Singh to be the eye-witness, whose evidence is to be recorded before the court below.

Other inconsistencies have also been pointed out by the learned Counsel for the Appellant, inter alia, that P.W. 1 Dinesh Singh is said to be standing about 2-4 steps from the deceased when he was said to have fired by the accused-Appellant. It is stated that in the aforesaid case P.W. 1 claims himself to be the co-accused but is said to have left alive without any injury to be an eye-witness of the incident which is highly improbable. It is also pointed out that according to Mukesh P.W. 2 the dead body of deceased Munna Singh alias Abhavyvir Singh was sent in jeep for post-mortem examination at about 10.30 and reached at mortuary at about 11 whereas according to P.W. 1 Dinesh Singh the dead body of the deceased was sent at about 11.15 and reached mortuary at about 2 p.m. This statement is contradictory for both P.W. 1 and P.W. 2 who are said to have claimed gone alongwith the dead body in the police jeep together.

It is stated that Indrapal Singh, C.W. 1 could not have been present at the time of preparation of panchayatnama for according to the G.D. he was at P.S. Chamanganj, Kanpur, which is accepted by him. He has also assailed the evidence of P.W. 2, Mukesh on the ground that Mukesh had stated in his evidence that he had remained at the spot but had neither seen any empty or live cartridge nor the dead body of the deceased ; that the Field Unit had also not found empty or live cartridges and the said cartridges were neither even deposited in the malkhana nor were produced before the learned Magistrate concerned.

It is vehemently urged that the Investigating Officer states to have kept the aforesaid cartridges with him after sealing it and to have sent them on 29.7.1999 to Vidhi Vigyan Prayogshala, Lucknow. It is also stated that the rifle surrendered by the accused themselves were sent to Vidhi Vigyan Prayogshala, Lucknow for test/ investigation and after investigation of the rifle and empty cartridges as well as sealed packet was received which did not contain anything. According to the learned Counsel for the Appellant, this shows that the cartridges were kept by the Investigating Officer for comparison from the rifle of the accused after the rifle was surrendered by them in order to ascertain that a report comes against the accused.

It is lastly urged that according to the report of the Vidhi Vigyan Prayogshala, Lucknow (Ex. Ka-19), the cartridge found at the spot is said to have been fired from the rifle of co-accused Roopesh and the same is also said to have been fired from the rifle of accused Ombir Singh, which shows that one empty cartridge was found at the spot fired by two different rifles, which is improbable.

Sri. K.N. Bajpai, learned A.G.A. assisted by Sri. Rajiv Lochan Shukla, advocate submits that there is long drawn history of bloody enmity between the parties ; that the presence of the witnesses P.W. 1 and P.W. 2 at the spot were natural ; that the blood stained clothes were taken in his possession by the Investigating Officer and that Chemical Examination Report confirms the presence of human blood which establishes the presence of the witnesses at the spot/incident of occurrence beyond doubt. He submits that not only this, empty cartridge as well as live cartridge were recovered from the spot on the day of incident and subsequently both the rifle of accused Roopesh seized by the Investigating Officer and the cartridges were sent to the Ballistic Expert who confirmed the fact that the cartridge was fired by the same rifle, which strengthens the prosecution story that the Appellant had committed the crime. He has urged that not only this Shadow P.W. 6 Maujan Singh had deposed about the absence of the Appellant-accused from his house at the relevant time when the incident took place, which is a strong corroborative circumstance against the Appellant-accused and the time of death as well as spot of occurrence has remained unchallenged by the Appellant coupled with the promptness of the F.I.R. completely rules out any possibility of its concoction and embellishment or F.I.R. of being afterthought.

He has vehemently urged that inquest of the dead body of the deceased was completed at about 11.05 a.m. and a bare perusal of the document that the case crime number and the sections etc. were duly filled in goes to show that the F.I.R. was lodged soon after the occurrence and that the dead body alongwith the F.I.R. reached the police station on the same day at about 2 p.m. on which the post-mortem examination was done on the same at about 4.30 p.m. The time gap between the murder and the post-mortem being about 8 hours confirmed that the entire police proceedings took place on the same day in between this period and this circumstance stated above completely negates the possibility of manipulation of F.I.R. or it being formulated after a long gap with due deliberation.

As regards the document relied upon by the Appellant and prepared by the Field Unit office is concerned, Sri. K.N. Bajpai, learned A.G.A. submits that the document is not readable in law for it is an unauthenticated, unauthorized and unofficial document. Apart from this it is stated that the report of the Field Unit has remained unproved document as it neither contains any signature nor it is known as to in whose handwriting it has been prepared. Per contra, it proves the prosecution version as the entry shown in this document is allegedly made after the Field Unit Party returned to their office at 3 p.m. Though it is also not shown or known as to when this entry was actually made but even if it is assumed that the entry was actually made at about 3 p.m. itself even then the document clearly shows that the crime number of the case, sections of the offence and also the name of the Investigating Officer had also been mentioned by the Field Unit when they had returned, which proves that the entire prosecution version contained in the F.I.R. had already come in existence and the investigation of the case had started in the manner as has been narrated by the prosecution. He has further submitted that the Field Unit returned back at 3 p.m. after making their investigating visit to a different Tehsil Jaswant Nagar in relation to some unknown dead body which was photographed by them on the same day. According to the learned A.G.A. this shows that the Field Unit left the place of occurrence within sufficient time before 3 p.m. otherwise, they could not have investigated the matter in different Tehsil Jaswant Nagar which is about 35-40 kms. away.

It is lastly urged by the learned A.G.A. that nothing or substantial could be illustrated from the cross-examination of both the witnesses of fact whose evidence is cogent and inspire confidence and there is no reason to disbelieve their evidence ; that it is a case of personal and political vendetta and a long standing personal enmity and the emergence of the deceased as political threat to the accused side whose real brother Jaiveer Singh was the sitting M.L.A. of B.J.P. culminated in this cold blooded murder taking place in broad day light. Unshaken ocular testimony corroborated by the promptitude of the F.I.R. and clinched by the Ballistic Expert report and also by the Chemical Examiner Report proving the presence of the blood on the clothes of the witnesses, all taken together proves the prosecution case beyond reasonable doubt.

Sri. Rajiv Lochan Shukla, learned Counsel for the complainant has supported the prosecution story and submits that besides producing P.W. 1 to P.W. 9 the prosecution also examined 3 more witnesses namely, Indrapal Singh, Rakesh Babu and Onkar Singh as Court witnesses. He states that the presiding officer had himself also made spot inspection in presence of the counsel for the parties.

It is stated by the learned Counsel for the complainant that there were ample motive for the Appellant as admittedly, there is long drawn enmity and bad blood between the parties ; the trial court has come to the conclusion that the evidence of the eye-witnesses in respect of the incident is believable, therefore, any proof regarding motive pales into insignificance. He submits that merely because the witnesses were partisan or related it cannot be a sufficient ground for discarding their testimony merely because independent witnesses were not forthcoming to depose before the Court.

Reliance has been placed upon paragraph 22 of the judgment rendered in Mahadeo Laxman Sarane and Another Vs. State of Maharashtra, In that judgment the Court observed that:

no straitjacket formula can be enunciated regarding the necessity of examining independent witnesses as it is common knowledge and experience that witnesses are not willing to depose in the Court and where the evidence of all eye-witnesses is found to be reliable and truthful, the question of corroboration does not arise.

He has also relied upon the judgment rendered in Suchha Singh v. State of Punjab 2003 (8) SRJ 366, wherein it has been observed that the Court should not castigate prosecution for not examining other persons of the locality as prosecution witnesses as it is expected to examine only those witnesses who had seen the occurrence.

It is also urged that the presence of eye-witnesses on the spot cannot be said to be doubtful in this case as it has come on record that the assailants threatened them with dire consequences when they tried to intervene and due to threats they had retracted their steps.

In the circumstances above, the evidence of P.W. 1, Dinesh Singh, the real brother of the deceased cannot be discarded. Similarly, the evidence of P.W. 2, Mukesh Singh can also not be discarded merely on the ground that he belonged to the party of the complainant. It is submitted that in an inimical situation only partisan witnesses might be naturally available as such the Court should not insist upon independent witnesses. Admittedly, there were two factions in the village which were bitterly opposed and inimical to each others. The enmity had already taken 12 lives and therefore, in the circumstances, it would be ideal to expect from any independent witness to come forward for giving evidence. It is stated that merely small discrepancies regarding the place of incident in the statements of P.W. 2 and P.W. 3 had crept in that will not be sufficient to say that attack by the Appellant was doubtful. It is also urged that Constable Maujam Singh P.W. 8, who was bodyguard of accused Ombir Singh and was deputed by the Government for protection of accused Ombir Singh was not related in any way to the deceased or his family members. He had stated in his evidence that on 15.7.1999 he went on his duty as usual but he was informed that accused Ombir Singh had gone out he came back to his quarter and on the next day came to know about the murder of Munna alias Abhavyvir Singh.

It is next contended that the persons of the Vidhi Vigyan Prayogshala, Etawah reached at the spot, took photographs of the deceased, scooped out simple earth and blood soaked earth and timings of the team of the Vidhi Vigyan Prayogshala, Etawah had been debated on the basis of oral evidence of C.W. 2 and C.W. 3. In this regard learned Counsel for the complainant submits that the Appellant has not drawn the attention of the Court that the copy of the Register of the department was brought on record and proved and exhibited which clearly indicates that information about the occurrence was received by the department at 10 a.m., therefore, it was natural for this witness to have reached the place of occurrence after 10 a.m. The document contains crime number of the offence and the name of the Investigating Officer, hence it cannot be said to be a document prepared afterwards and that ''agyat lash'' is mentioned therein. He states that it is clear from the record itself that the document do arrive at about 3 p.m. but it does not show that the team had directly reached their office at 3 p.m. and in fact they had investigated another dead body at Jaswant Nagar which was shown as ''agyat lash''.

As regards investigation is concerned, according to the provisions contained in Chapter XII of the Code of Criminal Procedure, Officer Incharge of the police station or his subordinate under his order and direction can be embarked upon the investigation and any investigation made by the subordinate officer under the direction of the Officer Incharge would constitute a part of the investigation. In the circumstances, the inquest report prepared by the P.W. 7 Nanhu Mal Nigam under the direction of S.O. P.S. Civil Lines, Etawah and chik F.I.R. as well as G. D. cannot be said to be a relevant or not prepared in accordance with law. All the relevant documents detailed in the aforesaid papers and other such minor procedural defects in the investigation cannot assume importance for acquitting the Appellant. Learned Counsel for the complainant has placed reliance upon paragraph 8 of the judgment rendered in State of Rajasthan v. Kishore 1996 SCC 446: 1996 ACR 442 (SC), as well as the judgment rendered in Leela Ram v. State of Haryana 2000 SCC 222: 1999 (3) ACR 2390 (SC), wherein the Apex Court has laid down the ratio of law that it is now a well-settled principle that any irregularity or even an illegality during investigation ought not to be treated as a ground to reject the prosecution case and there is no necessity to dilate on this issue.

In subsequent decision Amar Singh v. Balwinder Singh and Ors. 2003 SCC 641 : 2003 (2) ACR 1080 (SC), the Apex Court opined that:

that in cases of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would be tantamount to playing into the hands of the Investigating Officer, if the investigation is designedly defective.

To the same effect is the judgments rendered in Visveshwaran v. State 2003 SCC (Cri) 1270 and in Ram Bali v. State of U.P. 2004 SCC 2048 : 2005 (2) ACR 1691 (SC).

After hearing learned Counsel for the parties and on perusal of the record it appears that P.W. 2 Mukesh Singh had stated in cursory manner in his cross-examination that he had reached the Reserve Police Lines at about 11 a.m. on 15.7.1999 alongwith others as well as the dead body. However, from the record it is apparent that the dead body reached at about 2 p.m. at the police lines after the process of sending it from the place of occurrence had started at about 11.05 a.m. P.W. 1 Dinesh Singh had stated in his evidence that it took time for the body to reach the Police Lines as huge crowd had gathered for the reason that it had political overtone and the van in which the dead body was being taken was unable to move and sometimes it moved with crawling speed for the people in the crowds were asking question, that the prosecution witness P.W. 5 Constable Maujam Singh, who was entrusted with the dead body had deposed before the court below corroborating the aforesaid facts. Thus, the evidence of P.W. 1 and P.W. 5 cannot be obliterated by the testimony of P.W. 2. In our opinion, adverse inference cannot be drawn regarding minor contradictions between the evidence of prosecution witnesses and other witness.

As regards the testimony of C.W. 1, Indrapal Singh is concerned, the Appellant has vehemently urged that Indrapal Singh C.W. 1 had stated that he was posted at a Police Station in Kanpur City, therefore, it was not possible for him to come over here at Etawah at the time when the investigation is said to have been progressed for witnessing of ''fard''. This argument has been advanced by the Appellant to argue that F.I.R. is ante time and ''fard'' was not prepared at the alleged time. It may be noted that C.W. 1 Indrapal Singh was the cousin of the deceased and appears to have rushed to the spot without informing the Officer on receipt of the information.

In Ananta Deb Singh Mahapatra v. State of West Bengal 2007 Cri LJ 1707 : 2007 (3) ACR 2888 (SC), the Court while considering the facts and circumstances held that it is permissible as well the ruling reads "temporary absence from the place of work is not uncommon in our country and this is permissible if any emergency situation arises".

The F.I.R. is prompt and so is the submission of the charge-sheet. There is no possibility of mathematical calculation of time as witnesses tend to give approximate time according to their perception. The Court should not proceed on the basis of probability of the case rather than the ocular evidence of the witnesses to arrive at a conclusion that the incident in question could not have taken place at 9.20 a.m. The oral evidence of the eye-witnesses present at the time of incident is natural and believable. We are supported in our conclusion by the judgment rendered by the Apex Court in State of U.P. v. Rashid and Ors. 2003 (3) SRJ 183 : 2003 (3) ACR 2062 (SC). The evidence of prosecution witnesses cannot be discarded or unbelievable merely because they had deposed before the Court after a lapse of long period of time by which some contradictions might occur in their statements. Reference in this regard may be made to paragraph 22 of the judgment rendered by the Apex Court in Jai Shree Yadav v. State of U.P. 2004 (7) SRJ 506 (SC) : 2004 (3) ACR 2068 (SC) and as such in the aforesaid facts and circumstances the testimony of P.W. 2 Mukesh Singh is liable to be accepted. Some variations and contradictions in the lengthy examination-in-chief and cross-examination are but natural. The alleged improvement in the deposition of P.Ws. said to have been made did not weaken the veracity of the witnesses and as such they cannot be discarded by the Court. There are certain things which are explanatory in nature and sometimes clarify the earlier statements.

Any hypothetical question to dislodge the prosecution regarding the fact that the accused persons did not belong to the locality where the incident occurred and how did they come to know about the exact timing of the arrival of the deceased or the accused shot dead Abhayvir Singh alias Munna but spared the eye-witnesses who were unarmed at that time requires hypothetical answer. Neither the Court nor the prosecution nor the defence can go into the mind of a person to trace out the reason for doing a thing, which is an aspect within the special knowledge of the accused. The prosecution in our opinion therefore, is not required to meet every hypothetical question or such fanciful plea, it would be a clear case of deflecting the course of justice.

The prosecution witnesses have seen the incident of murder. As stated earlier, lodging of the F.I.R. is prompt and is in consonance with Section 157, Code of Criminal Procedure. Therefore, it cannot be said an ante time F.I.R. It is well-settled that mere delay in dispatching of the F.I.R. does not throw out the prosecution story in its entirety. Though it has been mentioned in the F.I.R. that accused Pramod Singh was armed with 12 bore katta but the autopsy report does not show any injury by the said 12 bore katta. Fire of the katta might have missed. The description of the eye-witnesses of the incident can be attributed to the fleeting incident. P.W. 2 was a rustic villager.

After perusal of the record and after hearing the learned Counsel for the parties we are of the considered opinion that the witnesses of the prosecution are believable and truthful. A photographic manner of description of occurrence is asking too much from a witness. The Courts in the circumstances, constrained to reveal are the bare naked truth in the context the testimony was given but this does not discredit the evidence of P.W. 1, P.W. 2 and P.W. 3 which is consistent with the F.I.R. version as in the present case P.W. 1 Dinesh Singh does not say that accused Pramod Singh was having 12 bore katta.

We may also take notice of the fact that alongwith other articles, one live. 315 bore cartridge and one khoka (empty cartridge) was recovered from the spot by the Investigating Officer. The rifles used by accused Ombir Singh and Rupesh Singh alias Rockey were sent to Central Forensic Science Laboratory, Lucknow under sealed cover. The report (Ex. Ka-19) shows that the marks on the empty cartridge tallied with the rifle of accused Rupesh alias Rockey.

Thus, we are convinced that the court below has rightly come to the conclusion on the basis of evidence and recorded Appellant Ombir Singh guilty of the charges levelled against him and has passed the order of conviction and sentence as stated above.

Accordingly, the appeal fails and is hereby dismissed. The Appellant is already in jail. He need not to surrender.

A copy of this order be sent to the C.J.M. concerned for compliance.