Ram Awadh and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—Under challenge in the instant Criminal Appeal is the judgment and order dated 28.10.2005 passed by Additional Sessions Judge, Court No. 17, Allahabad, in Special Sessions Trial No. 590 of 2003, arising out of Case Crime No. 261 of 2002, Police Station Phoolpur, District Allahabad, whereby appellant Santosh Kumar Yadav was convicted for the offence under Section 302 IPC and the remaining appellants Ram Awadh and Ram Babu were convicted for the offence under Section 302 IPC read with Section 34 IPC. For the offence under Section 302 IPC, appellant Santosh Kumar Yadav and for the offence under Section 302 IPC read with Section 34 IPC, appellants Ram Awadh and Ram Babu were sentenced to undergo rigorous imprisonment for life and also with fine of Rs. 3,000/- each with default stipulation of six months'' additional rigorous imprisonment. Appellant Santosh Kumar Yadav was further convicted for the offence under Section 25 of the Arms Act and was sentenced to undergo rigorous imprisonment for a period of one year and also with fine of Rs. 1,000/-. Both the sentences were directed to run concurrently.

Abridged facts, necessary for the disposal of the instant appeal, are that complainant Krishna Chandra Yadav lodged a first information report at Police Station Phoolpur on 01.09.2002 at 11.45 AM alleging therein that in village Amolwa, he has been allotted a residential plot area one biswa ten ghoor and the possession of the same was handed over to him by the Naib Tehsildar. Regarding this land, a case was going on with Ram Awadh (appellant), which was decided in his favour. On 01.09.2002, his son Pramod Kumar along with Kalloo son of Heera Lal Dhobi had gone to make arrangement of labourers. When they were coming back and reached in Harijan Basti in front of the house of Bajrangi then appellants Ram Awadh and Santosh Kumar, who were the residents of village Mahjudwa, and appellant Ram Babu, who was resident of his village, challenged his son and when his son turned back to see then on the exhortation of appellants Ram Awadh and Ram Babu, appellant Santosh Kumar @ Pappu fired with his country made pistol. His son, leaving his cycle, ran away and because of gun shot injury, he fell down and died. Kalloo, who was accompanying the deceased at that time, raised alarm. This incident is alleged to have been witnessed by Amar Bahadur, Harish Chanra Yadav, Bhim and other persons, who also raised alarm but the accused persons were successful in making good their escape. This incident is alleged to have taken place on 01.09.2002 at 11.00 AM.

The complainant went to the police station along with Kalloo and lodged the first information report which was registered only after 45 minutes of the occurrence. During course of investigation, with the permission of the court, the statement of appellant Santosh Kumar Yadav was recorded by the Investigating Officer wherein he offered to get the weapon of offence recovered. So he was taken on police remand by the Investigating Officer and on 10.09.2002, on his pointing out, the weapon of offence which was a country made pistol of 12 bore was recovered along with empty cartridge which was found wrapped in a Gamchha.

After registration of the first information report, inquest proceedings were conducted and the dead body of the deceased was sent for postmortem which was conducted on the body of the deceased on 02.09.2002 at 03.30 PM. According to the postmortem report, the time since death was about one day. Age of the victim was about 18 years and the following ante-mortem injuries were found on his person:--

"i) A firearm wound of entrance about 4 cm x 4 cm into chest cavity deep on left scapular region on back of chest direction of wound is obliquely towards medial side and anterior side. Margins are inverted. Blackening and tattooing is present. Pleura, larynx, pericardium and heart were lacerated. One wedding and 44 small pellets were recovered from the body of the deceased and after sealing the dead body, it was sent to Senior Superintendent of Police, Allahabad.

In the opinion of the doctor the cause of death was shock and haemorrhage as a result of ante-mortem firearm injury."

After completing the investigation, charge sheet was filed against the appellants.

The defence of appellant Santosh Kumar Yadav was that Kalloo Dhobi was on inimical terms with his father because of a litigation. No recovery was made on his pointing out and because of party bandi and enmity, he has been falsely implicated. Appellant Ram Awadh has stated that a civil suit regarding the plot in dispute, which the complainant claims to be in his possession, was pending and a court of competent jurisdiction had directed the parties to maintain status-quo. A civil suit was also going on between appellant Ram Awadh and Heera Lal Dhobi, father of witness Kalloo Dhobi, and because of this enmity, Kalloo Dhobi has given false evidence against him. Deceased Pramod Kumar Yadav was a man of bad character. He had so many enemies and he has been murdered at some other place and time and he has been falsely implicated. At the time of incident, he had gone to Allahabad with Ashok Kumar Yadav and Paras Nath Yadav to purchase a tractor. Likewise, appellant Ram Babu has also pleaded his innocence and his false implication because of enmity.

In order to prove its case, the prosecution has examined PW-1, the complainant Krishna Chandra, who happens to be the father of the deceased and has supported the case of the prosecution though he is not an eye witness. PW-2 is Kalloo Dhobi, an eye witness, PW-3 is Arjun, who was a witness regarding recovery of country made pistol on the pointing out of appellant Santosh Kumar Yadav. PW-4 is Dr. S.M.M. Nakvi, who has conducted the postmortem on the body of the deceased. PW-5 is SO Vijay Kumar Misra, who is the first Investigating Officer of this case. PW-6 SO Mahaveer Singh is the subsequent Investigating Officer of this case who after going through the investigation conducted by the first Investigating Officer has only filed charge sheet against the appellants.

In defence, on behalf of the appellants, certain papers were filed and no witness was examined in their defence.

After appreciating the evidence on record, learned trial court has convicted the appellants, as above, hence, the instant appeal.

Submission of learned counsel for the appellants was that in this case PW-1 the complainant was not an eyewitness. The prosecution has examined only PW-2 Kalloo Dhobi as a witness of fact and other persons, who were named in the first information report as eyewitnesses, have been withheld by the prosecution. Submission of learned counsel for the appellants was that the evidence of PW-2 Kalloo Dhobi does not fall within the purview of wholly reliable as he was an inimical witness. He has also made certain contradictory statements in his evidence which made his evidence unreliable. Regarding other two appellants namely Ram Awadh and Ram Babu, the role assigned to them was of only instigation which is a weak type of evidence. It is submitted that because of civil litigation they have been falsely implicated in this case.

Learned AGA has submitted that it is a case of broad day light murder. The evidence of PW-2 Kalloo Dhobi is wholly reliable. The first information report of this case was lodged with utmost promptness i.e. only after 45 minutes of the occurrence. Learned AGA has also argued that had there been any intention of the complainant to introduce any person as a witness of the incident then he would have named himself as an eyewitness of this incident but he has made no such efforts to claim that he himself has seen the incident in spite of the enmity and litigation, which shows that the complainant has come with clean hands and has stated the truth in the first information report. So the finding of the learned trial court was in accordance with law. Minor contradictions are bound to occur in the evidence of the witnesses and the trial court has rightly held that PW-2 Kalloo Dhobi was wholly reliable and has rightly convicted the appellants. So, no interference is required in the instant appeal.

Admittedly, in this case, the complainant is not an eyewitness and the incident is alleged to have been witnessed by PW-2 Kalloo Dhobi.

Before proceeding further, we would like to consider the first information report. The first information report in every criminal case is a very vital document as the entire case of the prosecution rests upon it. Though it is not a substantive piece of evidence but definitely it is very important document around which the entire prosecution case revolves. The first information report of this case was lodged only after 45 minutes of the occurrence at 11.45 AM. Perusal of the inquest report shows that the inquest proceedings started at 12.20 PM on the same day and concluded at 13.25 PM. The entire details of the case have been mentioned in the inquest report. Challan lash Ext. Ka-10 shows that the dead body was received at the headquarters on the same day at 05.50 PM and this challan lash Ext. Ka-10 also bears case crime number and police station of the case. Along with body, inquest report including annexures, copy of the chik report, GD, and other papers were also sent. So it is clear that the first information report was lodged at the time as alleged by the prosecution and virtually there was absolutely no delay in lodging the first information report which was lodged only after 45 minutes of the occurrence at the police station which was situated at a distance of five kilometres away from the place of occurrence.

Law expects a prompt first information report because it eliminates all the chances of coming up of a coloured version. On this point, reliance may be placed on the pronouncement of Hon''ble the Apex Court in the case of Nanhey Vs. State of Uttar Pradesh, .

A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon''ble the Apex Court in the case of Meharaj Singh (L/Nk.) Vs. State of U.P., while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under:--

"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."

15-A. In Thulia Kali Vs. The State of Tamil Nadu, the Supreme Court observed as under:--

"............ first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."

Similarly in Kishan Singh (D) through LRs. Vs. Gurpal Singh and Others, the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant''s case improbable when such delay is properly explained."

Keeping in view the aforementioned proposition of law, in the facts of the instant case, the first information report was lodged with utmost promptness and virtually there was no delay in lodging the same. A prompt first information report eliminates the chances of false implication, as stated earlier.

It is true that in the instant case PW-1 Krishna Chand Yadav is not an eyewitness and the case of the prosecution rests only on the solitary testimony of PW-2.

Learned counsel for the appellants has drawn our attention towards the statement of the complainant on the point of enmity and litigation. His submission was that regarding the plot in dispute an order of status quo was passed by the court of competent jurisdiction. Therefore, there was no occasion for the complainant to raise any construction on the said plot. Thus the very basis of the case of the prosecution case fails. But, in our considered view, this cannot be sole inference of this submission. Learned counsel for the appellants has not filed any copy of the plaint of Original Suit No. 314 of 2001 in which the said injunction order was passed. Even if it is assumed to be true that the complainant, in spite of the order to maintain status quo, was going to raise construction on the disputed plot then it would have provoked the appellants and it must have acted as motive to commit the offence. Since in the instant case there is direct evidence of PW-2, therefore, motive part goes into background. Law is settled on the point that if the prosecution proposes to prove its case by direct evidence then the motive becomes insignificant. Reference on this point may be made to the pronouncement of Hon''ble the Apex Court in the case of Habib Vs. State of Uttar Pradesh, , wherein Hon''ble the Apex Court has observed that if there is direct and trustworthy evidence of witnesses as to the commission of offence, the motive part looses its significance. Ocular testimony of witnesses cannot be discarded only by reason on absence of motive if otherwise evidence is worthy of credence.

Similar view has been expressed in the case of Subodh Nath and Another Vs. State of Tripura, wherein Hon''ble the Apex Court has observed that motive becomes relevant as an additional circumstance in a case where prosecution seeks to prove the guilt by circumstantial evidence only. But if there is direct evidence against the accused having committed offence motive becomes irrelevant. Similar view has again been expressed by Hon''ble the Apex Court in the case of Darbara Singh Vs. State of Punjab, .

The evidence of PW-2 Kalloo Dhobi has been assailed on the ground that it was not mentioned in the first information report that he came back to the complainant and informed him about the incident. But perusal of the first information report shows that it was mentioned in the first information report that the deceased went along with Kalloo Dhobi to engage labourers and at the relevant time he was coming back with Kalloo Dhobi. So simply because the complainant has nowhere mentioned in the first information report that the incident was told to him by PW-2 does not mean that it did not happen so. Every minute detail is not required under law to be mentioned in the first information report. The first information report of a case cannot be treated to be an encyclopaedia of the entire prosecution case containing all the minute details. Since it was mentioned in the first information report that the deceased went along with PW-2 Kalloo Dhobi to make arrangement of the labourers, therefore, in this perspective mere non-mentioning that the incident was not narrated by Kalloo Dhobi to the complainant does not create any adverse effect on the case of the prosecution.

Evidence of PW-2 Kalloo Dhobi has also been assailed on the ground that in the year 1996 a civil suit was filed against his father by appellant Ram Awadh and it has also come in the evidence that he had moved an application against Ram Awadh (appellant) at the police station. So he was an inimical witness and his sole testimony cannot be treated to be wholly reliable.

Hon''ble the Apex Court in the case of Anil Rai Vs. State of Bihar, has held as under:--

"....In case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity held to be a double edged weapon may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of eye- witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eye- witnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye-witnesses, the deposition of whom is otherwise consistent and convincing."

Similar view has been expressed by Hon''ble the Apex Court in several other cases.

Thus, in view of the aforementioned case law, the legal position which emerges is that the evidence of an inimical witness cannot be discarded on this score alone but it becomes obligatory on the court to scrutinize his evidence with extra care and caution.

Learned counsel for the appellants has submitted that as per site plan, place ''A'' has been shown as the place where the deceased received firearm injury and the fire was shot from place ''B'', which is at a distance of 4 paces from place ''A'' and the dead body of the deceased was found at place ''X'', which was at a distance of 58 paces towards North of the place where the deceased sustained injury. In the site plan, the direction from where the deceased along with Kalloo Dhobi (PW-2) came to the place of occurrence has also been shown which establishes the presence of PW-2 Kalloo Dhobi. Submission of learned counsel for the appellants was that though PW-2 Kalloo Dhobi has supported the case of the prosecution in his examination in chief but in his cross examination, he has made such contradictory statements which renders his testimony unreliable. Our attention was drawn towards the statement of PW-2 Kalloo Dhobi wherein he has stated that during incident only one fire took place and appellant Santosh Kumar Yadav was at a distance of about 60 paces from the East-South corner of the house of Bajrangi. On the strength of this statement, it is submitted that in the postmortem report blackening and tattooing were found and from a distance of 60 paces, such an injury could not have been caused. But this statement is virtually the result of misinterpretation which arose because only one sentence of statement of PW-2 was looked into. While we considered the statement of this witness as a whole then it is clear that the distance of 60 paces has not been stated by the witness as the distance between the assailant and the deceased but this is the distance from the East-South corner of the house of Bajrangi. Perusal of the site plan shows that the house of Bajrangi was having its face towards North side. Adjacent to his house, towards west is the house of one Sriram and after some gap there was lane. Thus, distance of 60 paces is not the distance between the assailant and the deceased. Perusal of the statement of this witness in the following lines shows that at the relevant time when Pramod Kumar received firearm injury at that time he was towards the north of the house of Bajrangi on Kharanja at a distance of about 58 paces. It shows that this witness has described the distance of these two persons from South-East corner of the house of Bajrangi. Thus taking his statement as a whole, the assailant was only at a distance of 60 paces from the said point and the deceased was at a distance of 58 paces. Thus, the distance between two persons was only two paces. So this statement of PW-2 Kalloo Dhobi cannot be taken to be a ground to discard his statement because he has not made any contrary statement rather it supports the case of the prosecution.

Learned counsel for the appellants has also submitted that the statement of PW-2 Kalloo Dhobi was recorded not on the date when the first information report was lodged while he was accompanying the complainant but it was recorded subsequently after six days of the incident. In the first information report it was mentioned that the dead body of the deceased was lying at the place of occurrence. So, if in that perspective in order to maintain law and order situation at the place of occurrence the Investigating Officer had proceeded to the place of occurrence without recording the statement of this witness then the said action of the Investigating Officer cannot be said to be unjustified. So simply because the statement of this witness was recorded after about 6 days of the occurrence his statement cannot be discarded. Even if it is assumed that there was some delay in recording the statement of this witness by the Investigating Officer and if the Investigating Officer fails to explain the delay then it would be the result of defective or negligent investigation and no benefit of the same can be derived by the appellants unless and until they show that such defect of the investigation has prejudiced them in their defence. From the very beginning, the prosecution has come with a definite case that at the time of incident PW-2 Kalloo Dhobi was accompanying the deceased. This fact is established by the version of the first information report, site plan and also by the evidence of witnesses recorded during trial. On the point of defective investigation reliance may be placed on the pronouncement of Hon''ble the Apex Court in the case of Ram Bihari Yadav Vs. State of Bihar and Others, , wherein Hon''ble the Apex Court has observed that if primacy is given to a designed or negligent investigation, or to the omissions or lapses created as a result of a faulty investigation, the faith and confidence of the people would be shaken not only in the law enforcing agency, but also in the administration of justice.

Similar view has been re-iterated by Hon''ble Apex Court in the case of Amar Singh Vs. Balwinder Singh and Others, .

Furthermore, in the case of Ram Bali Vs. State of Uttar Pradesh, , it was held by Hon''ble the Apex Court that the court must ensure that the defective investigation purposely carried out by the Investigating Officer, does not affect the credibility of the version of events given by the prosecution.

Learned counsel for the appellants has also submitted that at the time of the incident it was alleged that the deceased was coming on a cycle but no recovery memo of the cycle was proved by the prosecution. It is true that the recovery memo of cycle has not been proved but in the site plan the place where the cycle was found was mentioned and the Investigating Officer has also stated that he had recovered cycle from the place of occurrence and the same was given in the custody of the complainant. This fact has been brought on record in the cross examination and the Investigating Officer on the basis of the case diary has replied so. He has specifically replied that this fact is mentioned in the case diary. During cross examination it was not challenged that case diary does not contain such fact. So, in this perspective mere non-production of the cycle or its recovery memo does not make any difference.

The case of the prosecution has also been challenged on the ground that according to the postmortem report the condition of the deceased which was disclosed in the postmortem report was not such in which he could have covered a distance of 58 paces because the dead body of the deceased was found at a distance of 58 paces from the place where he received gun shot injury. Perusal of the entire evidence shows that no such question was put to the doctor who had conducted the postmortem. He was the expert person to reply, whether in view of injuries sustained by the deceased Pramod Kumar, he was capable of covering a distance of 58 paces or not. Neither any such question was put to the doctor nor any suggestion was given to this effect to him which means that this fact was not even challenged during trial and is being raised for the first time before this Court and that too without the same being put to the doctor. In our view a person after receiving the injury, under the heat of body, may cover the distance and it would differ from person to person. The deceased was a young man aged only about 18 years. So the mere fact that after sustaining injury, he covered a distance of 58 paces would not make the case impossible or improbable.

It is true that the incident of this case had taken place in broad day light, in an inhabited area. Several residential houses were near the place of occurrence and it is also true that not even a single person of the vicinity, though some other persons were also named in the first information report, have not been produced by the prosecution.

It is settled principle of appreciation of evidence that the court cannot ignore the ground realities. In the present day world, people avoid to become witness of an offence to avoid enmity with the criminals. The main reason of this apathy of the public is that they do not feel themselves secured and safe to become a witness against criminal. Virtually no security is provided to the witnesses. After becoming a witness of a crime they feel their lives at the mercy of criminals. So the time has come when the State must make arrangement to provide effective security to witnesses for effective administration of criminal justice. So simply because the other persons did not come forward to support the case of the prosecution cannot be treated to be a ground to discard the evidence of a witness who dares to depose against the accused persons and has come forward before the court with his woeful tale.

Hon''ble Apex Court in the case of Shiv Ram and Another Vs. State of U.P., has considered this aspect and was of the view that nowadays it is a common tendency that no outsider would like to get involve in a criminal case much less in the crime of present magnitude. Therefore it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons but what is required in such situation is that the Court must scrutinize the evidence of such witnesses with utmost care and caution.

In another case Appa v. State of Gujarat, AIR 1988 SC 698 Hon''ble Apex Court observed that ''Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused.

Apart from it, law is settled on the point that it is not the quantity of witnesses but it is the quality of evidence which matters. It is true that from the evidence on record, it can be inferred that some civil litigation had taken place between Ram Awadh and Heera Lal, father of PW-2 Kalloo Dhobi, but simply on this ground, his testimony cannot be discarded. Admittedly, he was accompanying the deceased and had gone with him to engage labourers and when they were coming back after engaging labourers then the incident took place. This witness had accompanied the complainant to the police station and a very prompt first information report of this case was lodged. After going through the entire evidence of PW-2, we are of the considered view that his presence at the place of occurrence cannot be doubted. Specific role of firing and causing death has been assigned to appellant Santosh Kumar Yadav, who happens to be the son of appellant Ram Awadh. It is nowhere the case of the prosecution that appellants Ram Awadh and Ram Babu were armed with any weapon. The only role assigned to the appellant Ram Awadh was that he made exhortation ''Maro Sale Ko'' and the role assigned to appellant Ram Babu was of exhortation also. However, exact words used by Ram Babu in the exhortation were not mentioned in the first information report. In his evidence, PW-2 has stated that appellant Ram Awadh made exhortation ''Maro Salo Ko''. However, he has not made any allegation that appellant Ram Babu had also made any exhortation. The use of words ''Maro Sale Ko'' (as mentioned in the first information report) does not lead to the only inference that this exhortation was to cause death. Apart from it, absolutely no role has been assigned to appellant Ram Babu. We cannot ignore the ground realities that in offences of heinous nature, a general tendency exists to implicate some other persons apart from real culprits and minor roles are assigned to them and in this perspective, the evidence of exhortation is considered to be weak type of evidence. The reason for such tendency, to our mind, appears to implicate such persons also who can do effective pairvi of the main accused so that main accused may become handicapped in doing his effective pairvi.

On this point, reliance may be placed on the pronouncement of Hon''ble the Apex Court in the case of Jainul Haque Vs. State of Bihar, , wherein Hon''ble the Apex Court has observed as under:

"The part attributed to the appellant according to the first information report is that he had exhorted the other accused to assault Leyaquat, while according to the evidence adduced at the trial the appellant actually joined in the assault on Leyaquat. The High Court did not accept the prosecution evidence on the point that the appellant had joined in the assault on Leyaquat. All the same, the High Court convicted the appellant because it was of the view that the appellant had exhorted the other accused to assault Leyaquat. In the absence of any substantive and cogent evidence adduced at the trial that the appellant had exhorted the other accused to assault Leyaquat, the High Court, in our opinion, should not have convicted the appellant for the offence under Section 323 read with Section 114 of the Indian Penal Code. The High Court has found the evidence of the eyewitnesses to be unsatisfactory. It has also found that the eyewitness were prone to exaggerate things and to involve as many accused as possible. In the circumstances it was, in our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant, by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant."

Hon''ble the Apex Court in the case of Anand Mohan Vs. State of Bihar, while following the judgment of Jainul Haque (supra) has held as under:

"69. This Court has held in Jainul Haque v. State of Bihar (supra) that evidence of exhortation is in the very nature of things a weak piece of evidence and there is often quite a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim and unless the evidence in this respect is a clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant."

Thus, in such situation, it becomes the duty of the court to separate grain from the chaff and to workout the truth. Voyage of criminal trial is to find out the truth.

So far as the factum of recovery of country made pistol on the pointing out of appellant Santosh Kumar Yadav is concerned, this recovery is admittedly made after taking appellant Santosh Kumar Yadav on police remand. Not only the police witnesses but an independent public witness namely Arjun has also supported the factum of recovery of weapon at the pointing out of appellant Santosh Kumar Yadav. During the course of entire argument the factum of recovery of country made pistol on the pointing out of appellant Santosh Kumar Yadav was not challenged. After going through the evidence regarding the recovery of country made pistol, we are of the view that it stands fully established and such a recovery of a weapon of offence on the pointing out of appellant Santosh Kumar Yadav also provides corroboration to the solitary testimony of PW-2 Kalloo Dhobi.

Apart from it there is nothing on record, except the bald statement of the appellants in their statements under Section 313 Cr.P.C. to give rise to any inference that this incident had taken place at some other place. Appellants could not produce any person of the vicinity on this point in their defence, while houses of so many persons were shown in the site plan.

39-A. In view of discussions made above, in our considered view, keeping in view the role assigned to appellants Ram Awadh and Ram Babu, they deserve to be granted the benefit of doubt. However, the appeal, so far as it relates to appellant Santosh Kumar Yadav, deserves to be dismissed.

Accordingly, this criminal appeal, so far as it relates to appellants Ram Awadh and Ram Babu, is hereby allowed. They are acquitted of all the charges levelled against them. They be set at liberty. They are on bail. Their bail is cancelled and sureties discharged.

Criminal appeal, so far as it relates to appellant Santosh Kumar Yadav, is hereby dismissed. He is in custody. He shall serve out his sentence as imposed by the learned trial court.

Office is directed to communicate this order to the court concerned for immediate compliance and also to send back lower court record.