The State of U.P. vs Nand Kishore and Others

Vijay Kumar Verma, J.—Challenge in this Govt. Appeal is to the Judgement and Order dated 15.09.1982 passed by Sri H. L. Kureel, the then 3rd Additional Sessions, Judge, Hamirpur in Session Trial No. 282 of 1980 (wrongfully mentioned as S.T. No. 228 of 1980 in impugned judgement), whereby the respondents-accused Nand Kishore, Lakhan Lal, Brij Bhushan, Luxmi, Drig Pal and Ram Kishore have been acquitted of the offences punishable under Sections 148 and 302 read with Section 149 I.P.C. in case crime No. 110/80 of P.S. Rath, District Hamirpur.

Respondent-accused Nand Kishore has died during pendency of this Appeal. Hence, the appeal against him stands abated.

The incident resulting in the death of Bal Ram, brother of the complainant, Daya Ram S/o Paras Ram resident of Village Jakhedi, P.S. Rath, District Hamirpur occurred in the morning of 20.06.1980. The case of the prosecution as appearing from the First Information Report (Ext. Ka-20), in brief, is that there was practice of evening and morning prabhat pheri processions in Village Jakhedi. On the day of occurrence i.e. 20.06.1980 at about 5.00 a.m., Bal Ram and Himanchal, both brothers of the complainant had gone to participate in the prabhat pheri. In addition, Ram Kalan, Brindavan, Sidh Gopal, Buddha, Kashi Ram, Kalku and some children of the village also were participating in the prabhat pheri. When at bout 5.30 a.m., the procession of prabhat pheri reached near the house of Nand Kishore S/o Des Raj Lodhi situated at the outskirt of Village, the accused Nand Kishore and Lakhan Lal all of a sudden came out from their house and exhorted Brij Bhushan saying "Mar Sale Ke Goli". On this, Brij Bhushan fired on the back of Bal Ram, due to which he fell down. Himanchal and other people participating in prabhat pheri requested the accused persons not to cause the death of Bal Ram, but the accused Drig Pal having Ballam, Luxmi having Kulhari and Ram Kishore armed with Farsa came out from the house and they started to assault Bal Ram by their respective weapons. On this, the persons participating in the prabhat pheri began to run, Himanchal(P.W.2) came to his house and informed his brother Daya Ram that Nand Kishore, Lakhan Lal, Drig Pal, Brij Bhushan, Luxmi and Nand Kishore have committed murder of Bal Ram inflicting injuries by means of Tamancha, Kulhari, Farsa and Ballam. On this information, the complainant Daya Ram, his brother Shiv Ram, Radhey, Govind Das and his cousin brother Priti Pal having licenced guns, rushed towards the place of occurrence and they saw that Bal Ram was lying dead near the door of Nand Kishore and the accused persons were running away towards river. The complainant and his companions chased the accused upto some distance, but they fled away after crossing the river. It is further alleged in the F.I.R. that about 2-2 1/2 months ago, an altercation between Bal Ram and Nand Kishore and about a month ago altercation between Bal Ram and Ram Kishore had taken place. Although the dispute was settled amicably, but due to that enmity, the accused persons on getting opportunity caused the death of Bal Ram.

Leaving the dead body of Bal Ram at the place of occurrence, the complainant Daya Ram (P.W.I) went to P.S. Rath and handed over written report(Ext. Ka-1), which he himself had scribed. P.W. 7, Shyam Lal Dixit was posted as Head Moharrir at P.S. Rath. He prepared chik FIR (Ext. Ka-20) and registered a case u/s 147, 148, 149 & 302 I.P.C. at crime No. 110/80 on 20.06.1980 at 8.00 a.m., entry of which was made in G.D. No. 9 vide Ext. Ka-21.

On the F.I.R. being lodged, the then S.O., P.S. Rath, Kripal Kurila (P.W.6) started the investigation. After recording the statement of the complainant Daya Ram, he along with other police personnel proceeded to the place of incident and conducted inquest proceeding on the dead body, during which inquest report (Ext. Ka-4) and connected papers Ext. Ka-5, Ka-6, Ka-9 and Ka-10 were prepared. Thereafter, the dead body was sent in sealed condition for post-mortem examination, which was conducted by Dr. A. K. Srivastava (P.W.5) on 20.06.1980 at 3.45 p.m. According to the post-mortem report (Ext. Ka-2), the following ante-mortem injuries were found on the person of deceased:

(a) Five (5) gun shot entry wound .4 cm. x .4 cm. in mid line at lumbral 2 vertebral in area 4 cm. x 4cm. clots present. All pellets found and sealed, fracture of Lumber 2 vertebral underneath.

(b) Incised wound 12 cm. x 2 cm. on left side of neck and left lower jaw, 1 cm. below left ear. Clots present. Fracture of left lower jaw.

(c) Incised wound 14 cm. x 2 cm. on upper part of left pinna and left cheek. Fracture of left maxilla underneath, clots present.

(d) Incised wound 22 cm. x 5 cm. on left temporal and left cheek, bone deep. Clots present, .5 cm. above injury No. 3.

(e) Incised wound 14 cm. x 2 cm. x bone deep on left temporal and left side of forehead, just above inj. No. 4. clots present.

(f) Incised wound 8 cm. x 2 cm. on left side of head, 4 cm. above inj. No. (5). Fracture of left parital, Brain deep. Clots present.

(g) Incised wound 12 cm. x .2 cm. x skin deep on Rt. scapula, 1 cm. below upper border of scapula. Clots present.

(h) Punctured wound .3 cm. x ,3 cm. on back aspect of left arm, 2.5 cm. above elbow point. Clots present.

(i) Abrasion 1.5 cm. x 1 cm. on left side of chest, 4 cm. below left nipple, on cutting congestion present.

Rigor mortis on the dead body was not found present and greenish discolouration was present over abdomen, which was slightly distended. In internal examination, left temporal, parital and frontal bones were found fractured. Membranes were congested and lacerated. In brain, clots were present. Fracture of L2 Vertebral was found. Pleura was congested. Both lungs were also slightly congested. Left Maxilla and left lower jaw were fractured. Small intestine was partly filled and large intestine was empty. Bladder was full.

Death was caused due to brain haemorrhage and laceration of brain. Duration of death was about half day ago.

During investigation, one blood stained alfi (Ext. 1) and one angochha (Ext. 2) were taken into possession and memo Ext. Ka-7 was prepared. After making spot inspection, S.I. Kripal Kurila prepared site plan (Ext. Ka-8). Blood stained and simple earth were taken into possession from the place of incident and memo Ext. Ka-11 was prepared in this regard. One Chimta (Chamita) (Ext.3), Dholak (Ext.4), two gamchhas (Ext. 5 and 6) were found lying on the place of occurrence, which were also taken into possession and memo Ext. Ka-13 was prepared. Search for the accused persons was made vide memos Ext. Ka-14 and Ext. Ka-15. Statements of other witnesses were recorded and after completion of the investigation, chargesheet (Ext. Ka-17) was submitted against all the accused.

On the case being committed to the Court of Session, charges u/s 148 and 302 read with Section 149 I.P.C. were framed against all the six accused, to which they pleaded not guilty and claimed to be tried.

The prosecution in order to prove its case, examined seven witnesses in all. P.W. 1, Daya Ram is the complainant. He is not the eyewitness of the incident. Written report (Ext. Ka-1) has been proved by him. P.W. 2 Himanchal, P.W. 3, Sidh Gopal and P.W. 4, Ram Kalan are the eyewitnesses of the incident. P.W. 5, Dr. A. K. Srivastava has proved postmortem report (Ext. Ka-2). P.W.6, Kripal Kurila is the Investigating Officer and P.W. 7, Shyam Lal Dixit is the scribe of F.I.R. and G.D. of registration of the case. Affidavit of Constable, Khurshaid Ali, who deposited the case property in Sadar Mal Khana, Hamirpur has been filed.

In their statements recorded under Section'' 313 Cr.P.C., the accused-respondents denied their participation in the alleged incident and they have stated that due to enmity, they have been falsely implicated in this case. They did not examine any witness in defence, but some documents have been filed by them.

After taking entire evidence into consideration, the learned Trial Court acquitted the respondents-accused vide impugned judgement. Feeling aggrieved, the State of U.P. has preferred this Govt. Appeal after seeking leave of the Court.

We have heard Sri D. P. Upadhyay, learned A.G.A. for the State-appellant, Sri Ravindra Sharma, learned Counsel for the complainant and Sri G.S. Chaturvedi, learned senior counsel appearing for the accused-respondents assisted by Sri R. K. Gupta, Advocate and perused the entire evidence including the impugned judgement carefully.

Assailing the impugned judgement, it was strenuously contended by learned A.G.A. that the findings of acquittal recorded by learned Trial Court are perverse and unreasonable, because on the basis of wholly reliable testimony of the eyewitnesses Himanchal, Sidh Gopal and Ram Kalan, it is fully proved beyond reasonable doubt that murder of Bal Ram was committed by the respondents-accused on the alleged date, time and place. It was further submitted by learned A.G.A. that participation of the deceased in the prabhat pheri procession was also established beyond doubt, but the learned Trial Court did not properly appreciate the evidence and on surmises and conjectures, the respondents-accused have been acquitted.

On the contrary, it was submitted by learned senior counsel appearing for the respondents-accused that the learned Trial Court has not committed any error of law or fact while acquitting the accused-respondents. It was also submitted that if two views on the evidence produced by the prosecution are possible, then the view, which is favourable to the accused has to be accepted by the Appellate Court and since in instant case, the findings of acquittal recorded by learned Trial Court are neither perverse nor against the evidence, hence interference by this Court in the impugned judgement is not warranted.

Before coming to the grounds on the basis of which the findings of acquittal have been recorded by learned Trial Court in the impugned judgement, let us scrutinize the evidence led by the prosecution. According to the F.I.R. lodged at P.S. Rath (Hamirpur) on 26.06.1980 at 8.00 a.m. by the complainant Daya Ram, murder of his brother Bal Ram was committed near the house of accused Nand Kishore on 20.06.1980 at about 5.30 a.m. Regarding the incident, the prosecution has examined three eyewitnesses namely P.W. 2 Himanchal, P.W. 3 Sidh Gopal, and P.W. 4 Ram Kalan. We have carefully gone through the statements of these witnesses. In his statement recorded on 01.08.1981, P.W. 2, Himanchal has stated that about 12-13 months ago, there was practice of prabhat pheri in the village in the morning and evening and on the day of occurrence also, there was prabhat pheri. It is further stated by him that on the day of incident, he, Bal Ram, Ram Kalan, Brindaban, Sidh Gopal, Kalku and some children were participating in the prabhat pheri and when at about 5.30 a.m., the procession of prabhat pheri reached near the house of accused Lakhan Lal and Nand Kishore situated on the outskirt of the village, they both came out from their house and caught hold of Bal Ram and immediately thereafter, the accused Brij Bhushan having tamancha, Drig Pal having ballam, Luxmi having kulhari and Ram Kishore armed with farsa came out from the house and on exhortation of Nand Kishore, the accused Brij Bhushan fired on Bal Ram by tamancha, due to which he fell down. Me has further stated that the people participating in prabhat pheri requested the accused persons not to kill Bal Ram, but they did not pay any heed and the accused Drig Pal, Luxmi and Ram Kishore began to assault Bal Ram by their respective weapons. It is further stated by the witness Himanchal that he rushed to his house and informed his brother Daya Ram, on which he, Shiv Ram, Radhey, Govind Das and Priti Pal having guns rushed towards the place of occurrence and when they reached there, they saw that Bal Ram was lying dead near the door of Lakhan Lal and accused persons were going away towards the river, who were chased, but could not be caught. It is further stated by this witness that Chimta, which his brother Bal Ram was carrying and two gumchhas of Buddha and Ram Kalan and one Dholak fell down there, which were lying near the dead body.

Statement of P.W. 3, Sidh Gopal was recorded on 18.08.1981 whereas P.W. 4 Ram Kalan was examined on 20.08.1981. They both have supported the statement of Himanchal in their statements.

On the basis of the testimony of the witnesses Himanchal, Sidh Gopal and Ram Kalan, this fact is established beyond reasonable doubt that on the day of incident, the deceased Bal Ram was participating in the prabhat pheri procession and he was blowing chimta in the procession. It is also established on the basis of the testimony of these witnesses that when prabhat pheri procession reached at about 5.30 a.m. near the house of accused Nand Kishore and Lakhan Lal, they came out from their house and caught hold of Bal Ram and on their exhortation, the accused Brij Bhushan fired on him by tamancha due to which, he fell down and thereafter, the accused Drig Pal, Luxmi and Ram Kishore assaulted him by means of ballam, kulhari and farsa respectively, due to which he died instantaneously. Lengthy cross-examination from these witnesses was made by the learned Counsel for the accused respondents, but nothing material adversely affecting their testimony has been elicited from them in cross-examination. There is no material contradiction in the testimony of these witnesses and due to some minor variations and discrepancies, if any, in the statements of these witnesses, their testimony cannot be discarded. In the case of Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another, the Hon''ble Apex Court in para 9 of the report has held as under:

When an eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from malting some discrepant detail. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

The Court further observed:

It is a common practice in trial Courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the Section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.

The oral evidence led by the prosecution finds corroboration from the medical evidence. We have already reproduced ante-mortem injuries, which were found on the person of deceased Bal Ram at the time of post-mortem examination, which was conducted on 20.06.1980 at 3.45 p.m. Ante-mortem injury No. 1 was caused by fire-arm. Ante-mortem injuries No. 2 to 7 are possible to be caused by kulhari and farsa. Ante-mortem injury No. 8 is punctured wound, which may be caused by ballam. Injury No. 9 can be caused by friction. Dr. A. K. Srivastava, who conducted autopsy on the person of the deceased has stated in his statement that ante-mortem injuries of the deceased were possible to be caused on 20.06.1980 at about 5.30 a.m. As such, on the basis of post-mortem report, it is established that ante-mortem injuries, which were found on the person of deceased at the time of post-mortem examination were likely to be caused by the weapons, which the accused-respondents Brij Bhushan, Drig Pal, Luxmi and Ram Kishore were carrying at the time of incident.

On the basis of oral and medical evidence on record, this fact is established beyond doubt that on 20.06.1980 at about 5.30 a.m., injuries resulting in instantaneous death of deceased Bal Ram were caused by above-named accused-respondents on the exhortation of accused-respondents Nand Kishore and Lakhan Lal in prosecution of the common object of the unlawful assembly of which all the respondents-accused were members. Therefore, the respondents-accused were liable to be convicted for the offences with which they were charged, but the learned Trial Court on unjustified grounds has acquitted them recording unreasonable and to some extent perverse finding in the impugned judgement.

Now we come to the grounds on the basis of which findings of acquittal have been recorded by learned Trial Court.

PLACE OF OCCURRENCE

Due to non-sending of blood-stained earth to the Serologist for chemical examination and non-finding of wad pieces on the place of occurrence, it is held by learned Trial Court in the impugned judgement that place of incident has not been fixed. For this finding, the learned Trial Court has placed reliance on the case of Khushi Ram v. State of U.P. [1979 (Cri. LJ) 242]. This finding of learned Trial Court cannot be approved, because on the basis of trustworthy testimony of the eyewitnesses Himanchal, Sidh Gopal and Ram Kalan, it is proved beyond reasonable doubt that incident had occurred near the house of accused Nand Kishore and Lakhan Lal. Site plan (Ext. Ka-8), which was prepared by the Investigating Officer shows that the dead body of deceased Bal Ram was lying in front of the house of Nand Kishore on the rasta. Blood stained earth was collected by the Investigating Officer from the aforesaid place of incident. Chimta (Chamita) and Dholak were also lying near the dead body at the place of incident. Therefore, merely due to non-sending of blood stained earth for chemical examination and non-finding of wads on the place of incident, it cannot; be said that murder of the deceased was committed at some other place. In this regard, reference may be made to the case of State of U.P. v. Harban Sahai and Ors. (XXXVII)(1998 ACC 14), in which the Hon''ble Apex Court has held that "if the blood stained earth collected by the Investigating Officer has not been sent for chemical examination, then this omission would not vitiate the investigation". In our view, in the instant case also, due to non-sending of blood-stained earth for chemical examination to the Serologist and due to non-availability of wads on the place of incident, neither the, place of occurrence can be doubted, nor the testimony of eyewitnesses can be discarded.

TIME OF DEATH

The learned Trial Court on the basis of absence of rigor mortis on the dead body at the time of post-mortem examination has held that the death must have been caused at least twenty-four hours earlier. Time of the incident as alleged by the prosecution has also been disbelieved by the learned Trial Court on the basis of availability of urine in the bladder of the deceased. It is observed by the learned Trial Court that "it appears that the deceased had freed himself from the grand call of nature in the evening, but due to scorching heat he had taken water. This water was converted into the form of urine. Before he could discharge urine, somebody had done him to death. Death cannot under these circumstances be fixed early in the morning. Presence of urine in the bladder justifies this reason." In our view, the finding recorded by learned Trial Court regarding time of death is unreasonable and absence of rigor mortis on the dead body and availability of urine in the bladder at the time of postmortem examination cannot be the basis of acquittal. In the case of Hans Lal @ Hanshu Shankar Gaud and Anr. v. State of Maharashtra 2001 (43) ACC 270 , the Hon''ble Apex Court in para 5 of the report has observed that "medical evidence is only an opinion evidence and it is hardly decisive and more often inconclusive." Regarding the conflict between oral and medical evidence, the Hon''ble Apex Court in the case of Punjab Singh Vs. State of Haryana, has held that "if direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence." In the case of State of Madhya Pradesh Vs. Sanjay Rai, the Hon''ble Apex Court has made the following observations in para 17 of the report:

Though opinions expressed in text books by specialist authors may be of considerable assistance and importance for the Court in arriving at the truth, cannot always be treated or viewed to be either conclusive or final as to what such author says to deprive even a Court of law to come to an appropriate conclusion of its own on the peculiar facts proved in a given case. In substance, though such views may have persuasive value cannot always be considered to be authoritatively binding, even to dispense with the actual proof otherwise reasonably required of the guilt of the accused in a given case. Such opinions cannot be elevated to or placed on higher pedestal than the opinion of an expert examined in Court and the weight ordinarily to which it may be entitled to or deserves to be given.

Therefore, having regard to the observations made by the Hon''ble Apex Court in the cases mentioned above, in instant case due to absence of rigor mortis on the dead body and presence of urine in the bladder at the time of post-mortem examination, it cannot be said that murder of deceased Bal Ram was committed at some other time, because as mentioned above, on the basis of wholly reliable testimony of the eyewitnesses, it is fully proved beyond reasonable doubt that the incident in which murder of Bal Ram was committed occurred on 20.06.1980 at about 5.30 a.m. at the time when he was participating in prabhat pheri procession.

DELAY IN SENDING F.I.R, TO THE MAGISTRATE

One of the grounds for acquitting the accused-respondents is the delay in sending the F.I.R. to the Magistrate concerned. On this point, it is observed by learned Trial Court in the impugned judgement that "information to the higher officers under the Police Rules should be given at the earliest. Why this information was not dispatched with so quickness has not been explained. The delay in sending this information shows that some deliberation was thought about." Regarding the delay in sending the F.I.R. to the Magistrate, it was contended by learned A.G.A. that due to delay in sending the F.I.R. to the Magistrate, the case of the prosecution cannot be thrown out. We agree with this submission made by the learned A.G.A. In the case of Kiledar Singh v. State of M.P. (XLVI) 2003 ACC 219 , the Hon''ble Apex Court has held that "the delay in sending F.I.R. to the Magistrate by itself would not be sufficient to disbelieve the credible evidence of the prosecution witnesses." The Hon''ble Apex Court in the case of Rabindra Mahto and Another Vs. State of Jharkhand, has made the following observations in para 18 of the report:

There cannot be any manner of doubt that Section 157 of Criminal Procedure Code requires sending of an FIR to the Magistrate forthwith which reaches promptly and without undue delay. The reason is obvious to avoid any possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. At the same time, this lacuna on the part of the prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused persons.

In the case of Ashok Kumar Pandey Vs. State of Delhi, , it has been held by the Hon''ble Apex Court that "delay in dispatching of F.I.R. to Magistrate alone cannot be the ground to throw away the prosecution case, if otherwise proved by unimpeachable evidence." Therefore, in instant case also, the case of the prosecution cannot be thrown out due to delay in sending the F.I.R. to the Magistrate.

INCONSISTENCY IN OCULAR AND MEDICAL EVIDENCE

The learned Trial Court, in impugned judgement has held that injuries to the deceased cannot be caused in the manner as alleged by the. prosecution witnesses. It is mentioned in the judgement that on sustaining fire arm injury on the vertebra, the lower portion of the body becomes motionless. Introducing his personal experience, the learned Trial Judge has stated in the impugned judgement that whenever there is this type of injury, the body usually becomes unconscious and even the upper portion also becomes motionless and when upper portion becomes motionless, the body falls down on earth and no organ of the body can move this way or that way. It is further held in the impugned judgement that "since after receiving fire arm injury, the deceased, according to the eyewitnesses Himanchal and Sidh Gopal had fallen on the earth keeping his face and chest downward, he must have received injuries of lathi, farsa and kulhari on the back and on the back portion of head, whereas according to the post-mortem report, all the ante-mortem injuries of farsa and kulhari are on the left side of face and head etc., indicating that the injuries were caused not in the manner as suggested by the prosecution and it appears that the deceased had received these injuries first and gunshot injury afterwards." We are not impressed with the finding of learned Trial Court recorded on this issue. It is true that Dr. A. K. Srivastava (P.W.5) has opined that if vertebra is fractured then the lower part of the body will be motionless, but merely due to this opinion of Dr. Srivastava, it cannot be said that there is any material inconsistency between ocular and medical evidence in instant case. Although vertebra of the deceased was found fractured at the time of post-mortem examination, but after falling down on receiving gunshot injury, the possibility of taking turn by the deceased towards left and right side at the time of assaulting by accused persons cannot entirely be ruled out, because in the marpit a person will not remain lying like an idol. When a person is beaten, he will certainly move this way or that way and if in instant case, the deceased sustained some ante-mortem injuries on the left and right side of the body, then it cannot be said that the incident did not occur in the manner as suggested by the prosecution witnesses. In our view, the evidence of the witnesses Himanchal, Sidh Gopal and Ram Kalan is worthy of reliance and their testimony cannot be discarded on the ground that the deceased sustained injuries on left and right side of the body. The finding recorded by learned Trial Judge on this point cannot be sustained being unreasonable and unjustified.

PARTICIPATION IN PRABHAT-PHERI PROCESSION

The learned Trial Court has held in the impugned judgement that participation of Sri Bal Ram in the prabhat pheri on the unfortunate day is also wry doubtful. It is further held in the impugned judgement that why Bal Ram had participated in the morning prabhat pheri that day, when his other two brothers had already attended is surrounded with mystery and the prosecution has failed to explain that unusual circumstances in which Sri Bal Ram had attended the fateful prabhat pheri and these circumstances also can go to show that the prosecution story is false. In our view, this finding of learned Trial Court is wholly perverse and against the evidence. On the basis of the cogent and convincing evidence of eyewitnesses Himanchal, Sidh Gopal and Ram Kalan, it is fully proved beyond reasonable doubt that on the fateful day, the deceased Bal Ram was participating in the prabhat pheri procession and he was blowing chimta on that day. No specific training is required to blow the chimta and any person can blow it. The site plan (Ext. Ka-8) shows that chimta (chamita) was found lying at place ''B'' at the time of spot inspection. The said chimta with other articles, which were found lying near the place of incident were taken into possession by the Investigating Officer vide memo Ext. Ka-3. As such, on the basis of the evidence led by the prosecution, the presence of deceased Bal Ram in the prabhat pheri procession is established beyond doubt and finding recorded by learned Trial Judge to the contrary cannot be approved being perverse and against evidence.

MOTIVE

It is held by learned Trial Court in the impugned judgement that the motive was not very strong and due to some trifling altercation on a very simple matter between the accused Nand Kishore and deceased 2 1/2 months earlier, the accused persons will not go to the extent of committing murder of the deceased. Assuming for the sake of argument that motive was not very strong, even then, this cannot be the basis of acquittal. In this case, on the basis of direct testimony of eyewitnesses named above, it is established beyond reasonable doubt that the respondents-accused had committed the murder of Bal Ram on the alleged date, time and place. It is well settled principle of law that where prosecution has led cogent and trustworthy evidence to prove the crime, matter of motive looses significance. In the case of Thaman Kumar Vs. State of Union Territory of Chandigarh, the Hon''ble Apex Court has observed as under:

There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved.

The following observations have been made in the case of State of Himachal Pradesh Vs. Jeet Singh, by the Hon''ble Apex Court:

No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.

Having regard to the law laid down by the Hon''ble Apex Court in aforesaid cases and in catena of other decisions, no benefit can be extended to the respondents-accused due to weakness of motive.

LATCHES OF INVESTIGATING OFFICER

The learned Trial Court has mentioned in the impugned judgement that the Investigating Officer Sri Kripal Kurila has not displayed in the site plan (Ext. Ka-8) from where the gunshot was fired, which makes the prosecution story doubtful. Delay in recording the statement of Daya Ram has also been shown as the weakness of the Investigating Officer. the latches of Investigation Officer cannot, in our view, be made basis of acquittal in criminal trial, if prosecution case is otherwise proved. In instant case also, the prosecution has succeeded in bringing homo the guilt to the accused persons on the basis of cogent and trustworthy evidence of three eyewitnesses, who have no reason to falsely implicate the accused persons in this heinous crime. Therefore, the case of the prosecution cannot be thrown out due to any lapse or latches on the part of Investigating Officer. The Full Bench of this Court in the case of Gopal and Ors. v. State of U.P. (99) J.I.C. 858 has held that weakness of the investigation is no ground to reject the direct testimony of the prosecution witnesses. In this regard, reference may be made to the cases of State of Rajasthan v. Kishore and Ors. (XXXIII) 1996 ACC 284 and State of West Bengal v. Meer Mohammad Omar and Ors. (XVI)2000 ACC 598 also. Therefore, having regard to the well settled principles of law, the accused-respondents are not entitled to get any benefit due to any weakness of investigation or latches or lapses on the part of Investigating Officer.

We have mentioned above the main grounds on the basis of which the findings of acquittal have been recorded by the learned Trial Court in the impugned judgement. As stated earlier, all these findings are unreasonable and on some points perverse. It is fully proved beyond reasonable doubt that on the day of occurrence, the deceased Bal Ram was participating in the morning prabhat pheri procession and his murder was committed by the accused-respondents in persecution of their common object in front of the house of accused Nand Kishore and Lakhan Lal on 20.06.1980 at about 5.30 a.m., but the learned Trial Court recording unjustified and on some points perverse and unreasonable findings has acquitted the respondents-accused vide impugned judgement, which is liable to be set-aside. We are well aware that if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted and in cases where the Court entertains reasonable doubt regarding the guilt of the accused, the benefit of such doubt should go in favour of the accused, but it is equally well settled that the Court must not reject the evidence of the prosecution taking it as false and untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. In this case, the learned Trial Court has not properly appreciated the evidence led by the prosecution and on the basis of surmises and conjectures the evidence of eyewitnesses has been disbelieved. Therefore, after setting-aside the impugned judgement, the respondents accused have to be convicted of the offences with which they have been charged.

On the point of sentence, it was submitted by learned senior counsel for the accused-respondents that at the time of incident, the accused Drig Pal and Luxmi were children within the meaning of U.P. Children Act and hence, they cannot be sentenced to any imprisonment. After hearing arguments in the appeal on 09.04.2007 and 10.04.2007, judgement was reserved. It was submitted during arguments that the accused-respondents Luxmi and Drig Pal were children at the time of incident. Therefore, vide order dated 13.04.2007 an opportunity was given to the I accused-respondents Luxmi and Drig Pal to file some documentary proof in respect of their age at the time of incident. In pursuance of that order, these accused have filed their school leaving certificates with their affidavits, according to which the date of birth of the accused-respondent Drig Pal is 10.07.1962 whereas the date of birth of the accused-respondent Luxmi is 28.12.1964. Since no documents in rebuttal have been filed and verification of the school leaving certificates filed'' by the respondents Drig Pal and Luxmi has been got made by learned A.G.A., hence, reliance can be placed on these certificates.

Five Judges Bench of Hon''ble Apex Court summarising earlier decisions held in the case of Pratap Singh v. State of Jharkhand and Anr. 2005 SCC 742) that "it is the date of Commission of offences (and not the date when if the offender is produced before the competent authority or the Court) for determination of his age whether he was juvenile or otherwise. So, the date of commission of the offence is the crucial and material date in this regard."

In his statement, recorded u/s 313 Cr.P.C. in Trial Court on 19.08.1982, the accused- respondent Drig Pal had told his age as 19 years whereas the respondent-accused Luxmi had told his age 16 years. While recording the statements of the accused-respondents u/s 313 Cr.P.C, the learned Trial Court did not form its own estimate of the age of these accused-respondents as required under Rule 50 of General Rules (Criminal). The Hon''ble Apex Court in the case of Raisul v. State of U.P. 1976 SCC 613 has held that "the statement of accused regarding his age cannot be discarded without any cogent evidence." Therefore, keeping in view the age told by the accused-respondents Drig Pal and Luxmi in their statements recorded u/s 313 Cr.P.C. and on the basis of their date of birth as disclosed in their school leaving certificates, the accused-respondent Luxmi will deemed to be less than 16 years of age on the date of incident, which occurred on 20.06.1980, whereas the accused Drig Pal was more than 16 years on that date. Therefore, being the within the meaning of Section 2(4) of U.P. Children Act, 1951, in our view, benefit of Section 27 thereof can be extended to the accused-respondent Luxmi, but the accused-respondent Drig Pal is not entitled to get any benefit under this Act.

On the point of granting benefit under U.P. Children Act, the learned A.G.A. and private counsel for the complainant vehemently contended that the plea that the accused-respondents Luxmi and Drig Pal were children within the meaning of U.P. Children Act cannot be raised at this stage, because no such plea was taken by the accused during trial and no evidence was led by them either in the Court of Magistrate or in the Court of Sessions Judge and hence, the benefit under U.P. Children Act should not be extended to the accused-respondent Luxmi also. We are not impressed with this argument. In the case of Meharban and Ors. v. State of U.P. 2000 (2) A C R 1749 , it is held by this Court that benefit of U.P. Children Act can be extended to the accused in Appeal, even if this point is not raised before the Trial Court. In the case of Gopinath Ghosh Vs. The State of West Bengal, the Hon''ble Apex Court allowed the accused to raise such plea there. Therefore, the accused-respondent Luxmi being entitled to get benefit of Section 27 of U.P. Children Act, 1951 Act cannot be sentenced to any imprisonment, but such benefit cannot be extended to the accused-respondent Drig Pal, who was not the child within the meaning of Section 2(4) of this Act.

In the result, this Govt. Appeal is hereby allowed. The impugned judgement and order are set- aside and the accused-respondents Lakhan Lal, Brij Bhushan, Drig Pal and Ram Kishore are convicted u/s 148 and 302 read with Section 149 I.P.C. in case crime No. 110 of 80 P.S. Rath (Hamirpur) and sentenced to undergo rigorous imprisonment for two years u/s 148 I.P.C. and imprisonment for life and to pay a fine of Rs. 5,000/- (Rupees five thousand only) each u/s 302 read with Section 149 I.P.C. In default of payment of fine, these respondents-accused shall further undergo rigorous imprisonment for one year. The sentences shall run concurrently.

Respondent-accused Luxmi also is convicted under above-mentioned Sections, but extending the benefit of Section 27 of U.P. Children Act, 1951, no sentence is being imposed upon him. He is on bail. He needs not surrender, His personal bond and surety bonds of the sureties are cancelled and sureties are hereby discharged.

The accused-respondents Lakhan Lal, Brij Bhushan, Drig Pal and Ram Kishore are undergoing sentence in jail. They shall be kept there to serve out the remaining sentence.

Trial Court record alongwith a copy of this judgment be returned expeditiously for necessary action.