Surendra, Nasar, Diwari Lal and Naipal Dhobi (In Jail) vs State of U.P.

Vijay Kumar Verma, J.—This appeal u/s 374(2) of the Code of Criminal Procedure (in short ''the Cr.P.C.'') has been preferred against the judgement and order dated 13.09.2001 passed by Sri Kamal Singh, the then Additional Sessions Judge, Court No. 2, Farrukhabad in S.T. No. 164 of 1999, whereby the appellants (1) Surendra; (2) Nasar; (3) Diwari Lal and (4) Naipal (hereinafter referred to as "the accused") have been convicted and sentenced to imprisonment for life and to pay a fine of Rs. 5,000/- with additional imprisonment for two years in default of payment of fine u/s 302 read with Section 34 of Indian Penal Code (in short ''the I.P.C.).

The incident resulting in the death of three persons, namely Risi Ram, Ram Pal and Ram Prakash occurred on 23.12.1998 at about 8.00 p.m. in village Gadhi-Nangla, situated within the limits of P.S. Shamshabad, District Farrkhabad. The First Information Report was lodged by the complainant Ram Das s/o Rameshwar(P.W. 5). The case of the prosecution as appearing from the F.I.R. Ext. Ka-15 and statements of the complainant and other eyewitnesses, in brief, is that on 23.12.1998 at about 8.00 p.m., the accused Surendra and Nasar, both sons of Tulsi Ram and Diwari Lal s/o Guljari Lal, all residents of Gadhi-Nangla, hamlet of Sultanganj and accused Naipal Singh S/o Tulsi Ram Dhobi of Village Sultanganj came at the house of the complainant to have talks about the bail of his brother Sukh Ram, who was in jail. The accused persons began to have talks with Risi Ram, elder brother of the complainant. His brother-in-law (behnoi) Ram Prakash s/o Mewa Ram resident of Village Viraham Pur, P.S. Bhogaon, District Mainpuri, was also sitting there. The accused Naipal Singh asked the complainant to call his brother Ram Pal, as they want to have talks with him also. The complainant called his brother Ram Pal from his madhaiya. They all began to have talks sitting under the chhappar of the house of complainant. The accused Naipal Singh carried Ram Pal outside from the chhappar and began to talk with him separately and during talks, he fired on Ram Pal from the tamancha. At the same time, the accused Surendra, Diwari Lal and Nasar, who were sitting under the chhappar, also began to fire, due to which Risi Ram and Ram Prakash sustained injuries. Thereafter, the accused persons making fires fled away towards their houses. Ram Pal and Risi Ram succumbed to the injuries instantaneously. This incident was witnessed by the complainant Ram Das (P.W. 5), his mother Smt Ram Devi (P.W.1), Smt. Jharna Devi(P.W.2), wife of the deceased Risi Ram and Smt. Premwati (P.W.8), wife of the deceased Ram Pal. At the time of incident, fire was burning under the chhappar and dibbi was also litting. Further case of the prosecution is that due to the injuries sustained in this incident, the injured Ram Prakash also died on 03.01.1999 in his village.

Leaving the injured Ram Prakash and the dead bodies of the deceased Ram Pal and Risi Ram at the place of incident, the complainant Ram Das went to P.S. Shamshabad and handed over written report Ext. Ka-14, which was got scribed by him from Veer Pal S/o Murlidhar. On the basis of this report, P.W. 6 C/C Bhawar Singh Chaudhary prepared chik F.I.R. Ext. Ka-15 and registered a case u/s 302/307 I.P.C. at crime No. 238 of 1998 on 24.12.1998 at 00.30 a.m. against the accused Surendra, Nasar, Diwari Lal and Naipal Singh and made entry in G.D. No. 4 vide G.D. Extract Ext. Ka-16.

Preliminary investigation of the case was carried out by S.I. Shyam Sunder Sisodia P.W. 3, who was present at P.S. Shamshabad at the time of registration of the F.I.R. He reached at the place of incident accompanied by other police personnel and conducted inquest proceedings on the dead bodies of deceased Ram Pal and Risi Ram, during which, inquest reports Ext. Ka-5 and Ext. Ka-6 with connected papers Ext. Ka-7 to Ext. Ka 12 were prepared and thereafter both the dead bodies in sealed condition were sent for post-mortem examination through the constables Jaipal Singh and Shadilal.

The post-mortem examination on the dead body of deceased Ram Pal was conducted by Dr. R. N. Singh (P.W. 7) on 24.12.1998 at 3.40 p.m. According to the post-mortem report Ext. Ka-17, the following ante-mortem injuries were found on the person of deceased.

(1) Fire arm wound of entry 2cm x 1.5 cm with inverted, echymosed and lacerated margins on left lateral subcortal region, wound going upwards (paper torn)...(illegible), cavity, tearing intestinal loops and (illegible), communicating fire arm wound of exit 2 cm x 1.5 cm over right lumber region and upper part on posterior axillary line. Entry wound surrounded by blackening in an area 10cm x 8cm around it.

(2) Fire arm wound of entry 2 cm x 2cm with echymosed, lacerated, inverted margins 4 cm away from umbilicus at 8 O''clock position, wound going backwards, upwards (illegible), communicating wound of exit 2cm x 1.5 cm on right back of chest, liver found form.

(3) Fire arm wound of entry 2.5 cm x 1.5 cm on upper part of chest front going deep into left chest cavity. Wound is surrounded by blackening in an area of 6cm x 6 cm around it, direction backwards downwards to left. One bullet was recovered from left lung.

On internal examination, VI, VII and VIII ribs of right side were found broken. Both lungs were lacerated. Chest cavity was full of blood. Peritoneum was lacerated. Pasty food 250 gms. Was found in stomach. Pasty matter with gases in small intestine and faecal matter with gases in large intestine were found present.

On the same day at 4.20 p.m., Dr. R. N. Singh conducted post-mortem examination on the dead body of deceased Risi Ram and found the following ante-mortem injuries as per post-mortem report Ext. Ka-24:

(1) Fire arm wound of entry 4 cm x 3 cm on right eye orbit with lacerated, inverted and echymosed margins, wound was surrounded by blackening in an area of 4 cm x 4 cm around it. Wound going backwards and lateral(paper torn) through cranial cavity to communicate to the wound of exit on (illegible) area right. There is (illegible) damage to ear structures, brain with...(illegible).

(2) Fire arm wound of entry 6 cm x 4 cm on right limber region with inverted, echymosed and lacerated margins. On dissection right kidney and peritoneum found lacerated. One wadding and twelve small pellets from skin, muscle, kidney and intestine. Direction to left, back and upwards.

(3) Fire arm wound of entry 6 cm x 5 cm with inverted, echymosed and lacerated margins, surrounded by blackening in an area of 12 cm around it on right lateral side of chest, going deep into right lung. On dissection one wadding and one big round bullet were recovered from posterior chest wall right side. Direction medial wards upwards and backwards.

On internal examination, frontal bone of skull was found fractured. V, VI, VII and VIII right side ribes were broken. Pleura was lacerated. Pasty food about 250 gms. was found in stomach. Pasty matter and gases in small intestine and faecal matter with gases in large intestine were found present.

Both the deceased died due to shock and haemorrhage as a result of ante-mortem injuries.

The injured Ram Prakash was medically examined in Ram Manohar Lohia Hospital, Farrukhabad on 24.12.1998 at 10.30 a.m. by P.W. 11 Dr. Jogindra Pratap Singh. According to the injury report Ext. Ka-27, the following injuries were found on his person:

(1) Firearm wound of entry 3.5 cm x 1.2 cm x margins inverted, lacerated and echymosed, over inner side of left forearm, 9 cm above wrist, communicating with the wound of exit 3.8 cm x 2 cm x margins everted and lacerated, over back of left forearm, 12cm above wrist. Bleeding present. Recovered pieces of cotton, one tikli and pieces of bone from the wound of entry. Clotted blood present around the wound.

(2) Gutter shaped wound 2cm x 0.8 cm x skin deep over left side of upper lip, obliquely placed, extending into the left nostril, margins of lower part inverted, lacerated and echymosed. The margins of upper part everted and lacerated. Clotted blood present around wound.

The injured Ram Prakash was carried by his family members to his house in District Mainpuri, where he died on 03.01.1999. Information regarding his death was given through the application Ext. Ka-26 to the S.H.O. P.S. Bhogaon (Mainpuri) on 03.01.1999. On the basis of this information, inquest proceedings on the dead body of deceased Ram Prakash was conducted by S.I. Raghunath Singh in presence of P.W. 10 Constables Milap Singh and Ram Naresh, during which, inquest report Ext. Ka-13 and other papers were prepared and thereafter, the dead body in sealed condition was sent for post-mortem examination, which was conducted on 04.01.1999 by Dr. Avinash Kumar P.W. 9. According to postmortem report Ext. Ka-25, the following ante-mortem injuries were found on the person of deceased:

(1) Infective wound size 3.0 x 1.5 x bone deep on dorsal aspect of left forearm 10.0 cm below left elbow, serrus discharge and pus discharge present around the wound.

(2) Infective wound 3.0 cm x 1.0 cm x bone deep on the left forearm medical aspect 5.0 cm above wrist joint, serrus discharge present per-wound, There is fracture of ulna bone left side at lower l/3rd part. Foul smell present over the wound.

(3) Infective wound 2.0 x 1.0 cm x bone deep on the left side nostril region with fracture of left side maxilla bone.

On internal examination, one metallic bullet was recovered from right base of skull. There was fracture of left side maxilla bone.

The deceased died due to septicaemia shock as a result of ante-mortem injuries.

During the course of investigation, S.I. Shyam Sunder Sisodia (P.W. 3) after making spot inspection, prepared the site plan Ext. Ka-1 on 24.12.1998. Five empty cartridges were found lying on the place of incident, which were taken into possession and fard Ext. Ka-2 was prepared. Blood stained and simple earth were also collected from the place of incident and fard Ext. Ka-3 and Ka-4 were prepared. Statements of the complainant Ram Das, injured Ram Prakash and eyewitnesses Smt. Ram Devi and Smt. Jharna Devi were also recorded on that very day.

Rest investigation was carried out by S.I. Ram Sharan Goyal P.W. 12, who after completion of the investigation submitted charge-sheet Ext. Ka-28 against the appellants-accused.

On the case being committed to the Court of Session for trial, charge u/s 302 I.P.C. was framed against the accused-appellants, to which they pleaded not guilty and claimed to be tried.

The prosecution in order to prove its case, examined twelve witnesses in all. P.W. 1, Smt. Ram Devi; P.W. 2 Smt. Jharna Devi; P.W. 5 Ram Das and P.W. 8 Smt. Premwati are the eyewitnesses of the incident. Rest are formal witnesses, who have proved various documents as mentioned herein-above. P.W. 4 Sukhram is the witness of inquest report (Ext. Ka-13) of deceased Ram Prakash. P.W. 10 Constable Milap Singh has proved the application Ext. Ka-26, which was given by Sukh Ram regarding the death of his brother Ram Prakash. P.W. 10 Milap Singh and Constable Ram Naresh had also carried the dead body of the deceased Ram Prakash for post mortem examination.

The accused-appellants in their statements recorded u/s 313 Cr.P.C. denying their participation in the alleged incident have stated that due to enmity, they have falsely been roped into this case. The appellant-accused Surendra has further stated that murder of his brother Ram Niwas was committed by Sukh Ram, brother of the complainant, with the help of other miscreants and those very miscreants had committed the murder of Ram Pal and Risi Ram in the dacoity in the house of complainant who concocted false story of getting the affidavit filed to get his brother Sukh Ram released on bail. It is also stated by the accused Surendra that the appellants-accused have been falsely implicated in this case by the complainant, so that the conspiracy of committing murder of Ram Niwas may not be leaked out. The other accused also have adopted the aforesaid statement of the accused Surendra.

The appellants-accused have neither examined any witness nor led any documentary evidence in their defence.

The learned Trial Court having taken entire evidence into consideration convicted and sentenced the appellants-accused as mentioned in para (1) above. Hence, this appeal.

We have heard Sri P.N. Mishra, learned senior counsel assisted by Sri Rahul Mishra, Advocate appearing for the appellants-accused, Sri R. K. Singh, learned A.G.A. for the respondent and perused the entire evidence on record including impugned judgement carefully.

Regarding the happening of the incident, due to which, three persons namely Ram Pal, Risi Ram and Ram Prakash lost their life, the prosecution has examined Smt. Ram Devi (P.W. 1); Smt. Jharna Devi (P.W. 2); Ram Das (P.W. 5) and Smt. Premwati (P.W. 8) as eye witnesses. Having placed reliance on the testimony of these witnesses, the learned Trial Court vide impugned judgement has convicted the appellants-accused. We have carefully gone through the statements of these witnesses and in our considered view, the learned Trial Court has not committed any illegality in placing reliance on the testimony of these witnesses. P.W. 5 Ram Das is the complainant of this case, who had lodged the F.I.R. at P.S. Shamshabad in the same night at 12.30 a.m. He is also the eyewitness of the incident. His statement was recorded in Trial Court on 29.01.2000. In that statement, he has stated that about one year three months ago, at about 8.00 p.m., the accused Naipal Singh, Surendra, Nasar and Diwari Lal came to his house and said that they want to talk about the bail of his brother Sukh Ram, who is in jail. At that time, his brother-in-law (behnoi) Ram Prakash was also present. It is further stated by Ram Das that when Naipal Singh asked him to call his brother Ram Pal, he went to the house of Ram Pal and brought him and thereafter, they all began to have talks sitting under the chhappar of his house. P.W. 5 has further stated that the accused Naipal Singh carried Ram Pal outside the chhappar and began to talk with him separately and during talks, he fired from tamancha on Ram Pal, due to which, he sustained injuries and died on the spot. It is also stated by this witness that simultaneously the accused Surendra, Nasar and Diwari Lal also started firing and caused injuries to Risi Ram and Ram Prakash, due to which Risi Ram also died instantaneously under the chhappar and his brother-in-law Ram Prakash, who sustained serious injuries, died after about 10-11 days. P.W. 5 has further stated that this incident was witnessed by his mother Ram Devi, Bhabhi Jharna Devi and Premwati and when they raised hue and cry, the accused persons fled away towards their houses. It is also stated by this witness that he got the written report Ext. Ka-14 scribed by Veer Pal.

The statement of P.W. 5 Ram Das has been corroborated by P.W. 1 Smt. Ram Devi, who is his mother and was present at the time of incident in the house. Her statement in Trial Court was recorded on 18.12.1999. She has stated that about a year ago in the month of poos, the accused Naipal Dhobi after releasing from jail came to her house and said to her that if affidavits of Nasar and Diwari Lal are got filed, her son Sukh Ram will also be released on bail. On this, she asked Naipal to get her son released. It is further stated by P.W. 1 that thereafter, the accused Surendra, Nasar, Naipal and Diwari Lal came to her house at about 8.00 p.m. At that time, fire was burning under the chhapper and dibbi was also litting and her sons and son-in-law Ram Prakash were warming themselves near the burning fire. Accused persons also began to warm themselves. Smt. Ram Devi has further stated that the accused Naipal brought Ram Pal from his house and after having talks he carried him outside of the chhappar (Madhaiya) to have talks separately and when they were talking, the accused Naipal fired shot on Ram Pal, due to which he died then and there. It is further stated by P.W. 1 that simultaneously, the accused Surendra, Diwari and Nasar, who were sitting under the chhappar, fired from tamanchas on her elder son Risi Ram and her son-in-law (Ram Prakash), due to which Risi Ram also died on the spot and Ram Prakash sustained injuries. P.W. 1, Smt. Ram Devi has further stated that she and her daughters-in-law raised hue and cry, but no person of mohalla came there and after incident all the four accused fled away. It is also stated by P.W. 1, Smt. Ram Devi that prior to this incident, murder of Ram Niwas was committed by some persons, but the accused persons were saying that his murder was committed by her sons and they were having enmity due to that incident.

Smt. Jharna Devi (P.W. 2) is the wife of deceased Risi Ram. Her statement in Trial Court was recorded on 18.12.1999. She has corroborated the statement of P.W. 5 Ram Das and P.W. 1 Smt. Ram Devi. She has also stated that on the fateful day at about 8.00 p.m., when she and her mother-in-law Ram Devi and devrani Premwati were on their house, the accused Naipal, Surendra, Nasar and Diwari Lal came there and caused injuries by firing shots at Ram Pal, Risi Ram and Ram Prakash due to which, Ram Pal and Risi Ram died then and there and her nandoi Ram Prakash sustained serious injuries.

P.W. 8, Smt. Premwati, who is the wife of deceased Ram Pal, has also fully supported the prosecution version in her statement recorded on 28.12.2000. She has stated that about more than one year ago at about 8.00 p.m., the accused Naipal, Surendra, Diwari Lal and Nasar came on their house and called her husband Ram Pal in the chhappar where fire was burning and dibbi was litting. The accused Naipal carried her husband Ram Pal outside the chhappar to have talks with him separately and during talks, he killed her husband by firing shot from tamancha. Smt. Premwati has further stated that simultaneously the accused Diwari Lal, Nasar and Surendra fired on her jeth Risi Ram and brother-in-law (nandoi) Ram Prakash, due to which Risi Ram also died instantaneously under the chhappar and Ram Prakash was seriously injured, who died after about 7-8 days at his house. It is also stated by P.W. 8 that this incident was witnessed by her and her jethani Smt. Jharna Devi and mother-in-law Ram Devi. She has also asserted the presence of P.W. 5 Ram Das, the complainant and it is stated that her husband Ram Pal was called by the accused persons through Ram Das.

Lengthy cross-examination has been made from the aforesaid witnesses, but nothing material could be elicited from them in their cross-examination. There is no material contradiction in the statements of these witnesses and in our considered view, the testimony of these witnesses is worthy of credence. They being the inmates of the house are natural witnesses. On careful scrutiny of the testimony of these witnesses and other evidence on record, this fact is fully established beyond reasonable doubt that on the fateful day at about 8.00 p.m., the accused Surendra, Nasar, Naipal and Diwari Lal came on the house of the complainant and committed the murder of Ram Pal and Risi Ram by firing shots on them and also caused injuries to their brother-in-law (behnoi) Ram Prakash, who also died subsequently on 03.01.1999 at his house in village Virhampur, district Mainpuri. On the basis of the testimony of these witnesses, this fact is also established that at the time of incident, fire was burning under the chhappar and dibiya was litting there and in the light of burning of fire and dibiya, the P.W. 1, P.W. 2, P.W. 5 and P.W. 8 had seen and recognized the appellants-accused at the time of incident. All the accused were known to the witnesses prior to the incident and hence, there was no question of mistaken identity, as there was sufficient light in the chhappar and prior to the incident, there was exchange of talks with the accused persons over the matter of getting Sukh Ram released on bail.

Oral evidence of above mentioned eyewitnesses finds corroboration from the post-mortem reports Ext. Ka-17, Ext. Ka-24 and Ext. Ka-25. We have reproduced above, the ante-mortem injuries sustained by the deceased Ram Pal, Risi Ram and Ram Prakash. All the deceased had sustained firearm injuries and their death was caused as a result of those ante-mortem injuries. There is no material inconsistency in oral and medical evidence.

The defence version is that prior to the incident, the complainant and his brothers had got the murder of Ram Niwas committed by some dacoits and when Sukh Ram was sent to jail in that murder case, those very dacoits caused instant incident so that the conspiracy of the murder of Ram Niwas may not be leaked out. It was contended in this regard by the learned Counsel for the appellants-accused that the dacoity was committed in the house of complainant in the intervening night of 23/24 December, 1998 by those unknown dacoits with whose conspiracy the complainant and his brothers got the murder of Ram Niwas committed prior to the incident. In order to substantiate this plea, the appellants-accused have not led any evidence in their defence and there is nothing on record to show that any dacoity was committed in the house of complainant on the fateful night. On the contrary, on the basis of cogent and trustworthy testimony of the witnesses Smt. Ram Devi, Smt. Jharna Devi, Ram Das and Smt. Premwati, this fact has been proved beyond reasonable doubt that murder of the deceased Ram Pal, Risi Ram and Ram Prakash was committed by the appellants-accused by causing injuries to them by firing shots by tamanchas.

Much thrust was laid by learned Counsel for the appellants-accused that F.I.R. of this case is ante-timed and was lodged with the consultation of the police. It was submitted by learned Counsel for the appellants-accused that on getting the information about the incident, the police had come in the village and sub-inspector had got the written report Ext. Ka-1 scribed from Veer Pal and thereafter, in the morning F.I.R. was registered, which was shown to be lodged at 00.30 a.m. on 24.12.1998 making it ante-time. Although the complainant Ram Das P.W. 5 has categorically stated in his statement that written report Ext. Ka-14 was got scribed by him from Veer Pal in the village, but assuming for the sake of argument that after arrival of the police in village, written report Ext. Ka-14 was prepared by its scribe Veer Pal after seeking assistance from some sub-inspector, even then,, in our view, the reliable testimony of aforesaid eyewitnesses cannot be brushed aside. As we have mentioned above, the testimony of all the four eyewitnesses inspires confidence and being the inmates of the house, they are natural witnesses. There is no serious infirmity in their testimony. The appellants-accused have not been able to show that any dacoity was committed in the house of the complainant in the fateful night. No sign of committing dacoity in the house of complainant was found by the police at the time of spot inspection. Therefore, having regard to all these facts, the reliable testimony of prosecution witnesses and prosecution version cannot be discarded, even if it is assumed for the sake of argument that after seeking some help from any sub-inspector, written report Ext. Ka-14 was got scribed from Veer Pal Singh.

Regarding the testimony of above-mentioned eyewitnesses, it was vehemently contended by learned Counsel for the appellants-accused that their testimony could not be relied upon as P.W. 1 Smt. Ram Devi is the mother of the deceased Ram Pal and Risi Ram, P.W. 2 Smt. Jharna Devi is the wife of deceased Risi Ram, P.W. 5 Ram Das is the real brother of these deceased and P.W. 8 Smt. Premwati is the wife of Ram Pal. It was also contended by the learned Counsel for the appellants-accused that no independent witness has been examined by the prosecution and hence, merely on the basis of interested and related witnesses, conviction of the appellants-accused is bad in law. We are not at all impressed with these contentions. As has been mentioned above, all the four eyewitnesses, being the inmates of the house where the incident had taken place, are natural witnesses, whose testimony is also worthy of reliance. Hence, their testimony cannot be discarded merely on the ground that they are related to the deceased persons. The law is well settled that if the testimony of any witness is found reliable and worthy of credence, then his testimony cannot be brushed aside on the ground that he is related to the deceased or victim.

In the case of Dalip Singh and Others Vs. State of Punjab, it has been laid down as under by the Hon''ble Apex Court:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts.

Again in Masalti Vs. State of U.P., the Hon''ble Apex Court are worth mentioning:

But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

The above decision has been followed in Guli Chand and Others Vs. State of Rajasthan, in which Vadivelu Thevar Vs. The State of Madras, was also relied upon.

The following observations made by the Hon''ble Apex Court in Israr v. State of U.P. (51) 2005 ACC 113 in para 12 of the judgement are also worth mentioning:

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

The above position has been highlighted again in Galivenkataiah v. State of A.P. (60) 2008 ACC 370. in which reference has been made to some other cases also.

Having regard to the observations made by the Hon''ble Apex Court in the cases mentioned above, in instant case also, the testimony of Smt. Ram Devi, Smt. Jharna Devi, Ram Das and Smt. Premwati cannot be discarded merely on the ground that they are near relatives of the deceased persons, as their testimony inspires confidence, which finds corroboration from the medical and other evidence on record. In our considered view, the testimony of these witnesses can also not be discarded due to non-examination of any independent person, as generally the people avoid to appear as witness even if they have witnessed the incident. The Hon''ble Apex Court in the case of Appabhai and Another Vs. State of Gujarat, of the judgement has observed as under:

...Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the nugget of truth with due regard to probability, if any, suggested by the accused.

In the case of Krishna Mochi v. State of Bihar 2002 SCC (Cri) 1220, the Hon''ble Apex Court in para 31 of the judgement has made the following observations:

It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do no have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power.

Moreover, in instant case, it has come in the statements of the witnesses that even after raising hue and cry by them, no person of mohalla came at the time of incident. Therefore, having regard to this fact also, the testimony of above mentioned eyewitnesses cannot be discarded due to non-examination of any other independent witness.

It was submitted by learned A.G.A. that statement of the injured Ram Prakash was recorded u/s 161 Cr.P.C. by the investigating Officer during investigation, which finds place in parcha No. 1 of the case diary and since Ram Prakash died subsequently due to the injuries sustained by him in the incident, which occurred at the house of complainant Ram Das on 23.12.1998 at about 8.00 p.m., hence the statement of Ram Prakash recorded in the case diary will be treated as his dying declaration within the meaning of Section 32(1) of Indian Evidence Act and on the basis of that statement, it is fully proved that injuries were caused to him by the appellants-accused, who committed the murder of his brother-in-law Ram Pal and Risi Ram on the alleged date, time and place. On this point, it was contended by learned Counsel for the appellants-accused that so-called dying-declaration of the deceased Ram Prakash, which finds place in the case diary, cannot be used by this Court as evidence against the accused, as the said statement was not got legally proved by the prosecution during trial. In this context, our attention was drawn towards Section 172 Cr.P.C, which reads thus:

Diary of proceedings in investigation.- (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.

(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply.

Having gone through the statement of the investigating officer S.I. Shyam Sunder Sisodia P.W. 3, we find force in the aforesaid submission of the learned Counsel for the appellants-accused. It is true that the statement of injured Ram Prakash finds place in the case diary in parcha No. 1 and it is also true that on the basis of that statement, F.I.R. version is fully proved, but since that statement was not got proved in Trial Court in accordance with the procedure prescribed in Evidence Act for proving the documents, hence in view the embargo created by Sub-section (2) of Section 172 Cr.P.C, the aforesaid statement of injured Ram Prakash cannot be used as evidence against the appellants-accused. It was the duty of the public prosecutor to get the aforesaid statement of the injured Ram Prakash proved in Trial Court and copy of that statement ought to have been brought on record and marked as exhibit, but perhaps due to ignorance of law, the public prosecutor failed in his duty in not getting the aforesaid statement of injured Ram Prakash proved by investigating officer, S.I. Shyam Sunder Sisodia (P.W. 3) at the time of his examination in Trial Court. Although, in our opinion, the statement of deceased Ram Prakash recorded during investigation u/s 161 Cr.P.C., on being duly proved, could be treated as his dying declaration under the provisions of Section 32(1) in Indian Evidence Act, as the said statement relates as to the cause of his death, but since that statement was not got proved by the investigating officer during trial and was not marked as exhibit, hence that statement cannot be used now by this Court as evidence against the appellants-accused in view of the bar created by Sub-section (2) of Section 172 Cr.P.C.

No other point worth mentioning was urged before us by the parties'' counsel.

In view of the foregoing discussion, we come to the conclusion that the prosecution has successfully brought home the guilt against the appellants-accused beyond all reasonable doubts. Hence, no interference in the impugned judgement is warranted, as the learned Trial Court properly appreciating the evidence has rightly convicted the appellants-accused.

Although three innocent persons were eliminated by the appellants-accused, without any justification, but since the State of U.P. has not preferred any appeal for enhancement of sentence, hence we are not inclined to enhance the sentence by awarding death penalty in place of imprisonment of life.

Consequently, the appeal is dismissed. The appellant-accused Surendra, Nasar, Diwari Lal and Naipal are undergoing sentence in jail. They shall be kept there to serve out the remaining sentence.

The office is directed to return the Trial Court record expeditiously along with a copy of this judgement for necessary action.