Ranvir Singh and Others vs State

Alok K. Singh, J.—Four persons, namely, Ranveer Singh, Jaleel, Ram Naresh and Jagpal Singh were committed to the Court of Sessions on 13.3.1985 and charged by Vth Additional Sessions Judge, Hardoi on 24.7.1985 u/s 302 read with Section 34, I.P.C. The learned Additional Sessions Judge vide judgment and order dated 24.3.1987, passed in Sessions Trial No. 188 of 1985 convicted all of them for the offence u/s 302 read with Section 34, I.P.C. and sentenced each of them to undergo rigorous imprisonment for life.

Aggrieved by their conviction and sentence the aforesaid persons have preferred this criminal appeal.

During the pendency of appeal one of the Appellants, namely Ram Naresh, died about 10 years ago vide report of Police Station Pachdeora, district Hardoi, dated 6.11.2005. Consequently the appeal preferred by him abates.

Shortly stated the prosecution case runs as under :

(a) Appellants Ranveer Singh, Ram Naresh and Jagpal belong to the same family whereas Appellant-Jaleel is said to be their close associate. Appellants Ranveer Singh, Jaleel and Ram Naresh are residents of same village, i.e., Kamaalpur, Police Station Pachdeora, district Hardoi, whereas Appellant-Jagpal is resident of village Bhudiya, Outpost Allaganj, district Shahjahanpur, which is adjoining district of Hardoi. The deceased Ram Prakash Singh alias Munua, the complainant Vir Pal Singh, cousin of the deceased (P.W. 1) and Rajiv Kumar Singh, son of deceased (P.W. 4) also belong to village Kamaalpur. According to F.I.R. Appellant-Ranveer Singh had got the deceased arrested in a false case of gambling. The deceased told about this false implication to the co-villagers. Appellant-Ranveer Singh took it as his defarmation in the village and, therefore, he threatened to kill him. Apart from this it comes out from the evidence of the complainant Vir Pal Singh (P.W. 1) that at the time of occurrence Ranveer Singh used to teach in the village and on a complaint made by the deceased he was transferred to village Patipura.

(b) In this backdrop on the date of incident, i.e., on 18.7.1984 at about 6 a.m. the deceased, his cousin brother Vir Pal Singh and Rajiv Kumar Singh, son of the deceased, had gone to answer the call of nature towards west of village Kamaalpur in their fields. All the Appellants suddenly emerged out from the adjacent cane field and exhorted not to spare the deceased alive. Appellant-Ranveer Singh and Jaleel both were armed with guns and Ram Naresh and Jagpal Singh both were armed with rifles. They started firing at the deceased with common intention to kill him. The complainant-Vir Pal Singh (P.W. 1) and Rajiv Kumar Singh (P.W. 4) raised alarm. One Sher Bahadur Singh and Krishna Pal Singh of the same village who were also easing out in the nearby fields shouted and ran towards them. Then all the four Appellants ran away from there. The deceased after sustaining several fire arm injuries fell down in the field itself.

(c) After the Appellants left the place, Vir Pal Singh, Rajiv and some villagers who had reached there went near the deceased and found that he was still alive. They, therefore, took him to his house on a cot. Thereafter the complainant told about the incident to village Pradhan Jagpal Singh and got his report (Ext. Ka-1) scribed by him. Then the complainant went to the police station alongwith the report and the deceased, and lodged his report at the police station. Constable Clerk Umesh Pal (P.W. 7) prepared chik report (Ext. Ka-3) on 18.7.1984 at 7.10 a.m. and G. D. No. 7 dated 18.7.1984 at 7.10 a.m. (Ext. Ka-4). The case was initially registered u/s 307, I.P.C. and the investigation was entrusted to Sub-Inspector Satyadeo Singh (P.W. 5). He recorded statements of complainant Vir Pal Singh and Jagpal Singh, Pradhan, the scribe of the F.I.R. and sent the injured Munua Singh to District Hospital, Hardoi alongwith a Constable but the deceased succumbed to his injuries on his way near Narainpur culvert.

(d) At about 8.15 a.m. the Investigating Officer reached the place of occurrence in village Kamaalpur situate at a distance of about 3 kilometers from the police station. There he prepared a site plan (Ext. Ka-6) and took into possession two empty cartridges and prepared its Fard (Ext. Ka-17). From the place of occurrence the samples of plain and blood stained earth were also taken separately vide Fard (Ext. Ka-8). Then he entered into the village and recorded the statements of Raj Bahadur Singh, Ravindra Singh, Pratipal Singh and Sher Bahadur Singh etc. The complainant Vir Pal Singh also handed over the angochha which he was tying on his head at the time of the incident through which one bullet of rifle is said to have passed. This angochha was also taken into possession vide Fard (Ext. Ka-9). Therefore, the Investigating Officer made a search of the accused persons in the village but could not find them.

(e) At about 10.10 a.m. the village Chowkidar handed over G. D. No. 10 (Ext. Ka-5) saying that as injured Munua Singh had died at 8.25 a.m. in the way at the culvert of village Narainpur, the case has been converted from Section 307, I.P.C. to Section 302, I.P.C. Then the Investigating Officer reached at the culvert of village Narainpur at about 11 a.m. and prepared the inquest report and other papers such as challan lash, photo lash and letter to Reserve Inspector of Police and Chief Medical Officer for post-mortem. Thereafter the sealed dead body was handed over to Constable Shital Prasad for taking it to Hardoi for autopsy. Dr. J. B. Singh conducted the autopsy on 19.7.1984 at 3.30 p.m. The description of ante-mortem injuries would be mentioned hereinafter. The blood stained lungi of the deceased was also taken into possession by the Investigating Officer vide Fard (Ext. Ka-16). After recording statements of witnesses of inquest report the Investigating Officer came back to the police station and recorded the statements of remaining witnesses of fard and inquest report.

(f) On the next day also the Investigating Officer raided the house of accused persons but could not get any success. The son of the deceased, namely Rajiv Kumar Singh (P.W. 4) could not be available either on 18th or 19th July, 1984 and therefore his statement was recorded on 24.7.1984. The post-mortem report was also received on the same day. Further investigation was transferred to S.I. Radhey Shyam Sharma. On 4.8.1984 the subsequent Investigating Officer came to know about the surrender made by the accused persons in the Court and, therefore, he, after taking permission from the Court, interrogated the accused persons inside jail and finally submitted charge-sheet dated 5.8.1984 (Ext. Ka-17) against all the accused persons. Appellants-Ranveer Singh, Jaleel and Jagpal Singh were released on bail vide order dated 27.3.1987 by the Court.

In support of its case the prosecution examined in all 7 witnesses. Out of them Vir Pal Singh (P.W. 1) a cousin of the deceased and Rajiv Kumar Singh (P.W. 4) the son of the deceased (who was aged about 15 years at the time of the incident) are said to be eye-witnesses.

From the evidence of P.W. 1 it appears that there was enmity with the Appellants as already mentioned in para 4 of this judgment. On the day of occurrence he alongwith Ram Prakash Singh alias Munua (deceased) and Rajiv Kumar Singh (P.W. 4) had gone to ease out in the field of deceased towards west of the village and while they were sitting in the fields to ease out at about 6 a.m. all the Appellants suddenly emerged out of adjoining cane field and fired at the deceased with their respective weapons, i.e., guns and rifles. When he raised alarm, one of the Appellants, Jagpal Singh, fired at him also. On his alarm some villagers rushed towards the place of occurrence due to which all the Appellants ran away. Ram Prakash Singh alias Munua was carried on a cot to his house in the village. The complainant (P.W. 1) lodged F.I.R. at the police station. Ram Prakash Singh alias Munua expired near the culvert of village Narainpur on way to hospital.

The evidence of P.W. 2 Dr. J. N. Singh shows that autopsy on the body of Ram Prakash Singh alias Munua deceased, aged about 45 years, was conducted by him on 19.7.1984 at 3.30 p.m. He found the following ante-mortem injuries on the body of the deceased :

(i) The three rounded abrasions 1 cm. apart just each other on right arm interly 5 cm. below top of right shoulder 0.25 cm. x 0.25. cm. on each.

(ii) Rounded abrasions on right front of chest 0.25 cm. x 0.25 cm. x 3 cm. above right nipple at 11 O''Clock position.

(iii) Rounded abrasion 0.75 cm. x 0.75 cm. on interior abdominal wall right side 10 cm. away umblicus at 8 O''clock position.

(iv) Rounded abrasions 0.75 cm. x 0.75 cm. on left side or chest 20 cm. away from umblicus at 1 O'' Clock position.

(v) Fire arm wound of entry 0.75 cm. x 0.75 cm. on left side of abdomen on mid auxiliary line 4 cm. away iliac crest going towards right and slightly backward. Margins were inverted and lacerated.

(vi) Fire arm wound of entry on right hip posterior on greater trochanter of right hip, 2.5 cm. x 2.5 cm. Margins are inverted and lacerated. Greater trochanter is fractured going upwards, slightly forwards and towards left.

(vii) Fire arm wound of entry on left hip posteriorly just above greater trochanter 4 cm. x 4 cm. Margins are inverted and lacerated going slightly upwards towards right and forwards. Pellire bond fractured.

(viii) Fire arm wound of entry on right thigh anteriorily most in middle 0.75 cm. x 0.75 cm. x muscle deep. Margins are inverted and lacerated.

(ix) Fire arm wound of entry on right thigh 0.75 cm. x 0.75 cm. x muscle deep, 4 cm. below injury No. 8.

(x) Fire arm wound of entry on left leg lower part 10 cm. above ankle 0.75 cm. Margins are inverted and lacerated.

(xi) Fire arm wound of entry on left leg lower part 8 cm. above ankle 0.75 cm. x bone deep through and through. Margins are inverted and lacerated. Both bones fractured.

(xii) Fire arm wound of exit on lower part of leg 6 cm. above ankle 1 cm. x 1 cm. Margins are inverted and lacerated communicating with injury No. 11.

In his opinion as per the post-mortem report (Ext. Ka-2) the death occurred due to shock and haemorrhage as a result of ante-mortem injuries. The stomach contained 40 grams of curd like fluid.

The evidence of P.W. 3 Constable Umesh Pal shows that chik F.I.R. (Ext. Ka-3) and G. D. (Ext. Ka-4) were prepared by him. Initially the F.I.R. was lodged u/s 307, I.P.C. After the death of the deceased the case was converted u/s 302, I.P.C. at 9.05 a.m. vide G.D. (Ext. Ka-5).

P.W. 4 Rajiv Kumar Singh, the son of the deceased, was examined on 3.12.1986 as second witness of fact. He has also supported the prosecution story.

P.W. 5 Satya Deo Singh, Investigating Officer, was examined on 3.12.1986. He proved the following documents :

(a) Site Plan (Ext. Ka-6)

(b) Recovery Memo of 12 bore cartridges (Ext. Ka-7)

(c) Recovery Memo of blood stained and plain soil taken from the place of occurrence (Ext. Ka-8)

(d) Recovery Memo of angochha punctured by bullet (Ext. Ka-9) and material (Ext. 1)

(e) Inquest Report (Ext. Ka-10), and

(f) Statement of deceased (Ext. Ka-18).

He reached the place of occurrence on the same day at about 8.15 a.m. and made inspection. His evidence shows that in the site plan point ''C'' is the place where Rajiv Kumar Singh, the son of the deceased, was easing. This place is towards north of nali adjacent to merh (i.e., boundary) of the field of Ram Prakash Singh alias Munua deceased. ''D'' is the place where the complainant was easing and towards its south is a nali. Point ''B'' is the place where deceased Ram Prakash Singh alias Munua Singh was defecating. The distance between points ''C'' and ''D'' was about 5 paces and point ''B'' was about 7-8 paces towards north from the nali. He found blood at point ''A'' shown in the site plan. The distance between ''A'' and ''B'' was about 7-8 paces. The collection of blood from place ''A'' though not mentioned in the site plan, but it has been mentioned in the case-diary, he told. He also found fecal matter at the places where the deceased and two witnesses (P.W. 1 and P.W. 4) were easing. About this also he mentioned in the case diary as it was not necessary to mention all the things in the site plan, he told. He also explained in the cross-examination that the licensed gun of Appellant-Ranveer Singh could not be taken into possession because he was absconding.

The evidence of P.W. 6, Sri Radhey Shyam Sharma, Investigating Officer shows that he submitted charge-sheet (Ext. Ka-17). His evidence also shows that a search was made by him on 27.7.1984 for licensed gun of Appellant-Ranveer Singh but he came to know that the same has been deposited.

P.W. 7 Constable Shitla Prasad Yadav is the carrier of dead body who deposed about not allowing any person to touch the dead body till it was handed over for post-mortem.

Learned trial Judge believed the ocular account furnished by the prosecution and convicted and sentenced the Appellants in the manner stated hereinbefore.

Hence this appeal.

We have heard Sri Rishad Murtaza, advocate, learned Counsel for the Appellants and Sri Ashwani Kumar Singh, learned Government Advocate and have perused the entire record including the statements of prosecution witnesses, the exhibits tendered and proved by the prosecution and statements of the Appellants recorded u/s 313, Cr. P.C.

It is well embedded and established principle of law that where direct ocular evidence is available, motive loses its importance. Otherwise also the proof of motive only satisfies the judicial mind about likelihood of the authorship. Its absence only demands deep forensic search and cannot undo the effect of evidence otherwise sufficient. In fact motive is found in the mind of a person who is perpetrator of the crime. Motives of men are often subjective, submerged and unamenable to easy proof. Nevertheless in the instant case the immediate motive mentioned in the F.I.R. is to the effect that the complainant''s brother Ram Prakash Singh alias Munua (deceased) was got falsely implicated in a gambling case. After his release, he propagated in the village that he had been got arrested in the false case of gambling by Ranveer Singh-Appellant and Ors. Appellant-Ranveer Singh and his associates considered it to be their defamation and, therefore, they had threatened two days before the incident that they will kill the deceased. This motive has been found to be duly established by the complainant by means of his substantive statement before the Court.

Learned Counsel for the Appellants pointed out that by making improvement, one more motive has been added in the evidence before the Court that the deceased had also made complaints against Appellant-Ranveer Singh due to which he was transferred from village Kamaalpur to Patipura which is about 4-5 kilometers from there. Firstly, it cannot be termed as an improvement. The immediate motive alleged in the F.I.R. does not appear to have been altered or changed. At the most it can be said that one more motive has been brought on record. In fact a F.I.R. is not an encyclopedia to contain each and every details. The cousin of the complainant had been shot. When the complainant went to record the F.I.R., he stated at the spur of the moment whatever was uppermost in his mind. What the complainant stated was also most relevant immediate motive. The arrest of the deceased in the gambling case had led him to inform the villagers that he had been arrested falsely at the behest of Ranveer Singh and his associates. Ranveer Singh-Appellant considered it defamatory and, therefore, threatened to kill him just two days before the incident. Therefore, it was an immediate motive which the complainant in his wisdom thought and rightly so to mention the same in the F.I.R. Nevertheless the second motive which has come in the evidence of the complainant also appears to be real and relevant. In their statements u/s 313, Cr. P.C. none of the accused-Appellants have denied that Ranveer Singh-Appellant was a teacher. The complainant was cross-examined on this point at length. He elaborated that the deceased had not only made the complaint against Ranveer Singh-Appellant to the Block Pramukh but also to all the primary teachers just 3-4 months before the incident. The Appellant-Ranveer Singh has himself admitted in his statement u/s 313, Cr. P.C. that he was a teacher in Kamaalpur. None of the Appellants could also muster courage to deny that Appellant-Ranveer Singh was transferred from Kamaalpur to Patipura. They just showed ignorance. No defence has been adduced to show that the Appellant-Ranveer Singh continued to remain posted at Kamaalpur itself and was not transferred to Patipura. This deals with the motive part.

The F.I.R. has been made in this case promptly. The incident is said to have taken place at 6 a.m. The distance of the police station from the place of occurrence is 3 kilometers north-west. When the deceased fell down after receiving fire arm injuries on the spot, first of all he was taken care of by the complainant because the deceased was still alive. A cot was arranged and he was taken to his house first, then the report was got scribed with the help of the village Pradhan Jagpal Singh. Then the complainant went on foot to the police station to lodge the report after covering a distance of 3 kilometers. Consumption of about one hour in all these activities appears to be quite reasonable and natural. The report was ultimately lodged at 7 a.m. But the learned Counsel for the Appellants argued that the F.I.R. is ante-timed. In support of this contention he pointed out that on the reverse side of the written report and on the face of the chik report initially Section 302, I.P.C. was mentioned and thereafter it was made Section 307, I.P.C. But the suggestion that this report was registered after the death of the deceased, i.e., after 8.25 a.m. has been specifically denied by Constable Umesh Pal (P.W. 3). Moreover, this point of argument in fact has no material substance because in the General Diary (Ext. Ka-4) which was prepared at the same time, Section 307, I.P.C. is clearly mentioned and there is no over writing. Further, as has been laid down by the Hon''ble Apex Court there are some external checks in respect of a F.I.R. such as site map. In the present case, the site map (Ext. Ka-6) was prepared before the deceased succumbed to his injuries and crime number of the case, i.e., 62 and Section 307, I.P.C. are clearly mentioned on it. This clearly shows that the F.I.R. was not registered ante-timed after the death of deceased. The rest of the papers, i.e., inquest report, photo lash, challan lash, letter to C.M.O., letter to Reserve Inspector of Police and sample seal (Exts. Ka-10 to Ka-15) were prepared after the death of the deceased and, therefore, in those papers Section 302, I.P.C. has also been mentioned. Thus, the F.I.R. of this case was not ante-timed.

Now we come to the alleged place of occurrence. At the outset it may be mentioned that both the witnesses of fact are rustic villagers and did not have any measurement tape with them at the time of occurrence, and their evidence was also recorded after about 2 1/2 years of the incident, still they had been able to give minutest possible details of the topography correctly. They have told each and every detail about the distance from one point to the other and also the description of crops etc. standing on different fields at that time. According to prosecution case, as shown in the site plan, ''B'' is the place where the deceased was easing out and ''A'' is the place where he was belaboured. The distance between these two points is said to be 11 paces. Both the witnesses of fact, i.e., P.W. 1 Virpal Singh and P.W. 4 Rajiv Kumar Singh have also given the same distance, i.e., 10-12 and 10-11 paces respectively. The complainant (P.W. 1) even told the khata number of the field as 1319 and its total area about 10-12 bigha. The place where the deceased was sitting, i.e., ''B'' was his own agricultural field in which crop of arhar, bazra, urad and til was standing. ''C'' is the place where his son, Rajiv Kumar Singh (P.W. 4) was sitting and ''D'' is the place where complainant was sitting to ease out. The distance between ''C'' and ''D'', as given out by P.W. 4, is 8-10 steps. According to Investigating Officer the distance was 5 steps. There is no significant difference between both the versions. It has also come in the evidence that Patel (grass) about 4-5 feet in height was also standing due to which both the aforesaid witnesses had no embarrassment in easing out. Towards east of the aforesaid field of the deceased was cane field belonging to the deceased. It was in this cane field that all the four accused-Appellants were hiding themselves. After 2-3 minutes of the sitting of the deceased, the Appellants emerged out from the aforesaid field and exhorted and thereafter made firing upon the deceased. On hearing the exhortations and on seeing the Appellants the deceased ran for about 11 paces upto point ''A'' shown in the site plan and there he fell down after receiving fire arm injuries. The learned Counsel for the Appellants pointed out that according to the evidence the deceased had with him a lota (a mug) containing water but no such lota was found by the Investigating Officer. It has come in the evidence of P.W. 1 that he had taken back his lota. As far as the lota of the deceased is concerned it is not such an important factor which may pursuade us to disbelieve the entire evidence which otherwise appears to be credible and cogent. The place of occurrence has also been fixed by Investigating Officer (P.W. 5) who had taken plain and blood stained soil from the place of occurrence, i.e., ''A'' as shown in the site map. In reply to a specific query in the cross-examination the Investigating Officer told that he had also found faecal matter at the alleged places.

Now we take up the alleged date and time of the occurrence. Learned Counsel for the Appellants vehemently argued that according to the witnesses of fact the deceased had not consumed anything in the morning before his going to answer call of the nature. But in the post-mortem 40 grams of ''curd glc'' food was found in the stomach and the doctor (P.W. 2) has said that the deceased must have taken either milk or any similar liquid within four hours. The deceased was shot at about 6 a.m. when he was defecating. He died later at about 8.25 a.m. Four hours prior thereto will mean any time after 4.30 a.m. It is quite probable that the deceased had taken tea with milk before going for the morning call, which milk remained in his stomach. Therefore, this point has also no substance. The doctor (P.W. 2) conducted the autopsy on 19.7.1984 at 3.30 p.m. and according to him the death took place about 1 1/2 days before. That comes to 18.7.1984 around 9 a.m. as has been alleged by the prosecution. Both the witnesses of fact have also categorically told the time of incident as 6 in the morning. The incident is of the month of July and there is nothing unnatural for the deceased and the witnesses had gone to ease out at the alleged time. Thus, the alleged date and time are also duly established by cogent and credible ocular evidence duly corroborated by the medical evidence.

In respect of manner of incident both the witnesses of fact have specifically assigned the guns to Appellants-Ranveer Singh and Jaleel and rifles to Appellants-Ram Naresh (dead) and Jagpal Singh. They have also very clearly stated that immediately after emerging out of the cane field the Appellants exhorted and all of them made firing from their fire arms causing injuries to the deceased who fell down on the spot. According to P.W. 1 the distance of firing was around 10-12 steps while according to P.W. 4 it was 12-13 steps. Thus, there is no significant difference on this point also. The doctor has told that the injuries were sustained by the deceased on all sides, i.e., back, front and on the sides. In reply to questions the doctor told that injuries Nos. 6 and 7 could have been caused from a distance of about 7 feet and that injuries Nos. 1 to 10 cannot be caused by rifle. Injuries Nos. 1 to 10 were caused by guns. It is noteworthy that injuries Nos. 1 to 10 are either rounded abrasions or fire arm wounds of entry measuring 0.25 cm. x 0.25 cm. to 0.75 cm. x 0.75 cm. But injuries Nos. 11 and 12 appear to be corresponding to each other, injury No. 11 being wound of entry, 0.75 cm. x 0.75 cm. x bone deep through and through and injury No. 12 being exit wound, 1 cm. x 1 cm. Both the injuries were on left leg/ankle. According to medical jurisprudence the exit wound of fire arm caused by bullet of a rifle is normally bigger in size than the entry wound as was the case in the aforesaid two corresponding injuries. But probably, having regard to the size and measurement of the aforesaid fire arm wounds the doctor has opined that it could have been caused by both, by rifle or by gun.

The other point in respect of manner of incident argued by the learned Counsel for the Appellants is that in the F.I.R. initially Ranveer Singh Appellant is said have exhorted whereas in the substantive evidence of both the witnesses of fact it has come that all the four Appellants had exhorted. Again this is not such a point on the basis of which entire prosecution evidence which is otherwise credible, may be thrown away.

However, another point raised by the learned Counsel for the Appellants appears to be worth considering that the son of the deceased (P.W. 4) has clearly stated that he could not see as to how many fires were made from the rifles. He also could not tell as to whether rifle shots were made in the air or the same were aimed at the deceased. It is worthwhile to mention here, that out of the four Appellants, Appellant Nos. 1 and 2 were wielding guns while Appellant Nos. 3 and 4 were having rifles. Out of the two Appellant No. 3, Ram Naresh, has already died and this appeal has abated against him. There is no need to give any finding in respect of his complicity in the crime. We are left with Appellant No. 4 Jagpat Singh only. According to story one rifle shot was made by Appellant-Jagpal towards the complainant when he raised alarm but that shot passed through angochha (towel) wrapped by the complainant on his head, it was pointed out by learned Counsel for the Appellants. But any angochha was not handed over by the complainant at the police station at the time of lodging F.I.R. It was allegedly handed over subsequently to the Investigating Officer. Further, it was argued that according to Investigating Officer in this angochha there were signs of ''katta chharra'' (country made pistol-pellets) which falsifies the story of a bullet of a rifle shot passing through the angochha because a metallic bullet shot of rifle will make only a single whole. The aforesaid arguments of the learned Counsel for the Appellants carry substance and indeed some reasonable doubt is created about the presence and complicity of Appellant-Jagpat Singh to whom a rifle has been assigned. He also belongs to a different district, i.e., Shahjahanpur. In our considered opinion, the benefit of this reasonable doubt should certainly go in his favour.

Nevertheless the alleged manner of incident as far as causing fire arm injuries to the deceased by guns is concerned it is duly established by the ocular evidence which is in consonance with the medical evidence and there does not appear to be any doubt, what to say of reasonable doubt, as far as inflicting of fire arm injuries by Appellants 1 and 2 by their guns causing death of the deceased in furtherance of common intention is concerned. The doctor has also specifically opined that injuries Nos. 5, 6 and 7 were sufficient to cause death of the deceased.

As far as presence of witnesses on the spot is concerned the learned Counsel for the Appellants pointed out that the villagers used to go for easing out sometimes towards canal (at a distance of 200 yards from the village) and sometimes towards fields as has come in the cross-examination of one of the witnesses of fact. There is nothing unnatural about it and merely on this ground it cannot be said that the prosecution story becomes improbable.

Both the witnesses of fact P.W. 1 and P.W. 4 being cousin and real son of the deceased respectively appear to be most natural witnesses. Their evidence cannot be thrown away only on the ground of their being closely related to the deceased. At the most their evidence is required to be read with caution and that we have taken care of while reading and evaluating the evidence of both these witnesses. It is also significant to note as to why closely related witnesses will leave the real culprits and will implicate the Appellants only due to alleged enmity.

The learned Counsel for the Appellants also argued that no independent witness has been produced. It is a ground reality that normally the persons who are not related with the deceased or injured do not come forward to adduce evidence in the Courts even if they had witnessed an occurrence. As far as the instant case is concerned only two villagers have been mentioned in the F.I.R. who rushed to the spot after hearing firing and shrieks. It is true that they were not produced by the prosecution. But it is not the number of witnesses which matters in criminal cases, it is rather quality of the witnesses which is considered to be material. Even single witness may be sufficient to prove the complicity of an accused in the crime if his evidence inspires confidence and it is found to be credible. Moreover, in the instant case the son of the deceased (P.W. 4) has given reason also for not producing both the aforesaid witnesses mentioned in the F.I.R., namely Sher Bahadur and Krishna Pal Singh. According to him both had been won over by the Appellants and, therefore, they were not produced.

Lastly, the learned Counsel pointed out certain shortcomings in respect of investigation. It is also an established proposition of law that conclusion of the Court should not be allowed to depend solely on the probity of investigation otherwise the trial will plummet to the level of Investigating Officer ruling the roost. Nevertheless it is expedient to consider the points raised on behalf of the Appellants in respect of investigation.

Firstly, it was argued that the statement of the son of the deceased (P.W. 4) was not recorded on the same day or on the following day. In this regard it may be mentioned that the son of the deceased was hardly 16 years of age at the time of incident. He even did not go to the police station with his father, as told by him in reply to a query made by the defence. He has also explained that he had gone to village Masidha to inform one Surendra Singh. When the Investigating Officer was asked on this point he told that about the son of the deceased no definite information could be received from his house and, therefore, his statement was not recorded on that day or on the following day. It was recorded subsequently. The learned Counsel emphasized that his statement could have been recorded at the culvert itself on the day. It is true that the son of the deceased had gone to the place where the dead body of his father was kept, i.e., near Naraina culvert at about 10 a.m. and he remained there for about two hours as has come in evidence but there was no occasion of any formal introduction between him and the Investigating Officer at that time and he being of very tender age, i.e., about 16 years probably did not know that he is supposed to tell on his own anything about the incident to the Investigating Officer. When asked about it in his cross-examination he innocently replied that the Investigating Officer did not ask anything from him at the Naraina culvert and, therefore, he did not tell anything. Even if there was some lapse on the part of Investigating Officer it is not going to shatter the entire prosecution case of this day light murder.

Secondly, the learned Counsel for the Appellants also drew our attention towards the statement of the Investigating Officer (P.W. 5) that the complainant Virpal Singh had come with him to the spot and he made spot inspection at about 8.15 a.m. and till that time he did not have any information about the death of the deceased. The complainant has told in his cross-examination that after the death of deceased his body was kept at Narain culvert where he was also present. But he also explained that he kept on coming to the village and the place of occurrence in between and it appears quite natural also.

The third point raised by the learned Counsel for the Appellants in respect of investigation is that the blood stained and plain earth and the clothes were not sent for chemical examination by the Investigating Officer. In reply to this argument the learned Government Advocate placed reliance on the case of Dhanaj Singh @ Shera and Others Vs. State of Punjab, wherein it has been laid down that even if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. It was further held that in the case of defective investigation the Court has to be circumspect in evaluating the evidence. But it has no right to acquit the accused persons solely on account of the defect ; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. In this case before the Hon''ble Supreme Court the accused-Appellants challenged the conviction on the ground (i) that pellets, wads and cartridges were not recovered from the spot (here two empty cartridges have been recovered vide relevant fard duly proved) (ii) that the weapons of assault and the pellets were not sent for ballistic examination (iii) that the bloodstained earth was not sent for chemical examination (iv) that many persons who could have thrown light on the incident had not been examined, and (v) that the evidence of the witnesses of fact being that of highly interested and inimical persons. The Hon''ble Supreme Court dismissed the appeal. All these points have been raised before us also. This Division Bench cannot do better than respectfully adhere to the observations made by Hon''ble Apex Court in the above case. It was also argued that the weapons of assault were not taken into custody or sent for ballistic examination. The Investigating Officer has told that as the accused were absconding and they surrendered quite late, i.e., after about 10-11 days, and, therefore, no useful purpose would have been served either by taking the licensed gun or the other guns of the Appellants for sending for ballistic expert examination.

For the aforesaid reasons, in our view, the learned trial Judge was correct in finding the involvement of the Appellants (except Appellant No. 4, Jagpal Singh) established in the incident. We also feel that he acted correctly in convicting the Appellants-Ranveer Singh, Jaleel and Ram Naresh for the offence u/s 302 read with Section 34 of the Indian Penal Code, and sentencing them to undergo imprisonment for life.

But we intend to give benefit of doubt to Appellant No. 4, Jagpal Singh, for the following reasons :

(a) Out of the 12 ante-mortem injuries found on the body of the deceased at the time of autopsy only one rifle shot injury (causing entry and corresponding exit wounds, i.e., injuries Nos. 11 and 12) has been found. According to prosecution story out of the four convicts only two, i.e., Appellant No. 3, Ram Naresh and Appellant No. 4, Jagpal Singh, were having rifles. As discussed above there is clear evidence against convict Ram Naresh making shots from his rifle. Therefore, aforesaid single rifle shot is attributable to him only.

(b) As far as Appellant No. 4, Jagpal Singh, is concerned witness Rajiv Kumar Singh (P.W. 4), the son of the deceased, has stated that he could not see as to how many fires were made from the rifles. He also could not tell as to whether the rifle shots were made in the air or the same were aimed at the deceased. The distance from where the rifle shots were allegedly made by these Appellants, as given out by this witness, also differed from other witness of fact.

(c) In order to show the involvement of Appellant No. 4, Jagpal Singh, an effort has been made to bring on record through the statement of the complainant that this Appellant made shot from his rifle towards him when he raised alarm but that shot passed through the angochha wrapped by the complainant on his head. But as mentioned in para 23 of the judgment no angochha was handed over by the complainant at the police station at the time of lodging of the F.I.R. It was allegedly handed over subsequently to the Investigating Officer. But as rightly pointed out by the learned Counsel for the Appellants, the Investigating Officer himself has shattered the prosecution case by saying that in this angochha there were signs of katta chharra (pillets of country made pistol) which falsifies the story of a bullet fired from the rifle passing through the angochha of the complainant because a metallic bullet of rifle shot will make only single hole instead of multiple holes which can be caused only by the pillets of 12 bore cartridge.

(d) Concededly Appellant No. 4, Jagpal Singh, belongs to a different village, namely Bhudiya, outpost Allaganj, district Shahjahanpur, which according to evidence is at a distance of about 16 miles (8 kos) whereas the remaining Appellants were residents of village Kamaalpur, Police Station, Pachdeora, district Hardoi, where the incident took place. Therefore the presence of Appellant No. 4, Jagpal Singh, on the alleged date, time and place of the occurrence becomes doubtful unless it is proved by any cogent and positive evidence. A serious charge of murder cannot be fastened upon him merely because he was related to the other accused persons unless his presence on the alleged date, time and place of occurrence and his involvement is proved beyond any reasonable doubt.

(e) It has also come in evidence that although two empty cartridges of 12 bore were recovered from the place of occurrence but no metallic shell (empty) of rifle bullet could be recovered from or near the place of occurrence. Any rifle was also not recovered or taken into possession from Appellant No. 4, Jagpal Singh.

Finally, therefore, in view of the discussion made in para 23 and the points mentioned hereinabove, in our opinion the benefit of reasonable doubt should certainly go in favour of Appellant No. 4, Jagpal Singh.

In the result this appeal is partly allowed. Although we uphold the conviction and sentence of Appellants-Ranveer Singh and Jaleel for the offence punishable u/s 302 read with Section 34 of the Indian Penal Code, we set aside the conviction and sentence of Appellant No. 4, Jagpal Singh for the offence u/s 302 read with Section 34, I.P.C. giving him benefit of doubt. He is on bail. He need not surrender. His sureties are discharged.

Appellants-Ranveer Singh and Jaleel are on bail. Their bail bonds are cancelled. They will be taken into custody forthwith by the learned lower court concerned and sent to jail to serve out the sentence awarded to them. The lower court record be sent back alongwith a copy of this judgment for necessary compliance under intimation to this Court through Registrar.

As observed earlier the appeal preferred by Ram Naresh stands abated as he has already died.