Vimal alias Vinod Giri and Others vs State of U.P.

Vijay Kumar Verma, J.—Challenge in this appeal is to the judgment and order dated 10.1.2003, passed by the Additional Sessions Judge/Fast Track Court No. 3. Ghazipur, in S.T. No. 171 of 2001, State v. Vimal alias Vinod Giri and Ors. whereby after striking off the charges Under Sections 352, 504 and 506, all read with Section 149, I.P.C., the Appellants Vimal alias Vinod Giri, Rajesh Giri, Ramashray Giri, Santosh Giri and Ramayan Giri (hereinafter to be referred as accused) have been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000 each with default stipulation u/s 302 read with Section 149, I.P.C. and ten years rigorous imprisonment and to pay a fine of Rs. 10,000 each with default stipulation u/s 307 read with Section 149, I.P.C. in Case Crime No. 244 of 2001 of P.S. Nandganj, district Ghazipur. By the same judgment, the Appellant Santosh Giri and Ramashray Giri have been further convicted and sentenced to undergo rigorous imprisonment for two years u/s 147, I.P.C. and the Appellants Vimal alias Vinod Giri, Ramayan Giri and Rajesh Giri have been further convicted and sentenced to undergo rigorous imprisonment for three years u/s 148. All the sentences have been directed to run concurrently.

In a nutshell, the accused persons faced trial in the following backdrop:

P.W. 1 Vinod Giri lodged an F.I.R. on 14.5.2001 at P.S. Nand Ganj, district Ghazipur. The case of the prosecution as appearing from the chik F.I.R. Ext. Ka-5, in brief, is that the complainant Vinod Giri s/o late Arjun Giri r/o village Babura (Madanhi) was sitting in his field under mango tree on 14.5.2001 at about 2.45 p.m. and his brothers Anil Giri and Amin Giri were standing there near him. When they were having talks, the accused Vimal Giri s/o Ramashray Giri armed with licenced D.B.B.L gun, Ramayan Giri s/o Chandrama Giri having S.B.B.L. gun, Rajesh Giri s/o Chandra Giri armed with country made pistol (katta), Santosh Giri s/o Ram Krit Giri having lathi in his hand and Ramashray Giri s/o Shri Nath Giri came there. There was dispute of rasta between the complainant and the accused persons. After reaching there, the accused-Ramashray Giri exhorted other accused saying that "ab ham log aa gaye hain, in salon ko jan se mar dalo." On this, the accused Vimal Giri fired from his D.B.B.L. gun on Amin Giri and accused Ramayan Giri also fired from his S.B.B.L. gun on Anil Giri, due to which they both sustained injuries. The accused Rajesh Giri also began to fire from country made pistol on the complainant, but he did not sustain any injury. The accused Santosh Giri having the lathi chased the complainant. On hearing the noise raised by the complainant, Shiv Prasad Giri s/o Ranjeet Giri and many other people of the village came there. Seeing those persons, the accused giving threatening fled away towards north-east side. When with the help of village people, the complainant was carrying his injured brothers to P.S. Nand Ganj, the injured Anil succumbed to the injuries in the way.

The injured Amin and dead body of Anil were brought to P.S. Nand Ganj, where the complainant Vinod Giri handed over written report Ext. Ka-1, which was scribed by Shiv Prasad Giri. On the basis of this written report, the then constable moharrir Devi Prasad Dubey (P.W. 6) prepared chik F.I.R. Ext. Ka-5 and registered a case Under Sections 147, 148, 149, 302, 307, 504, 506 and 352, I.P.C. on 14.5.2001 at 3.30 p.m. and made entry in the G.D. Ext. Ka-6 at the same time.

After registration of the case, the injured Amin Giri was sent to P.H.C. Nand Ganj with a letter (chitthi mazroobi). After giving preliminary treatment to the injured at P.H.C. Nand Ganj, he was referred to the District Hospital, Ghazipur, where he was medically examined by Dr. V.K. Singh (P.W. 4) on 14.5.2001 at 4.50 p.m. According to the injury report (Ext. Ka-3/1), prepared by Dr. V.K. Singh, the following injuries were found on the person of injured:

� Fire arm wound of entry 6 cm. x 2 cm. x cavity deep on left side back 8 cm. above and lateral to left hip joint. Bleeding present. X-ray advised. Margin inverted.

� Fire arm wound of exit 4 cm. x 2 cm. x cavity deep on medial aspect of back of left side, 6 cm. above from left hip joint. Bleeding present. X-ray advised. Margin everted. No blackening and no tattooing and singing present on both injuries.

After medical examination, the injured was admitted in the hospital, where he remained hospitalized till 27.5.2001, as is evident from Bed Head Ticket (Ext. Kha-1).

First information report was registered in presence of the then S.O. of P.S. Nand Ganj, S.I. Ram Narayan Singh (P.W. 7). He himself took up the investigation in his hands and started the investigation immediately after registration of the case. On his direction, S.I. Ram Singh (P.W. 8) conducted inquest proceedings of the dead body of deceased Anil Giri, which was kept at the gate of P.S. Nand Ganj. During inquest proceedings, S.I. Ram Singh prepared inquest report Ext. Ka-9 alongwith connected papers challan lash Ext. Ka-20, photo lash Ext. Ka-21, letter R.I. Ext. Ka-22, letter C.M.O. Ext. Ka-23 and seal impression Ext. Ka-24. After completing inquest proceedings on 14.5.2001 in between 3.40 p.m. to 5 p.m., the dead body was handed over to the Constable Ekhlaq Ahmad (P.W. 3), who carried the same to mortuary Ghazipur with the help of Constable Ram Sagar Singh. The post-mortem examination on the dead body of deceased was conducted by Dr. D.K. Gupta (P.W. 5) on 15.5.2001 at 11.30 a.m. According to the post-mortem report Ext. Ka-4/1, the following ante-mortem injuries were found on the person of deceased:

� Firearm wound of entry 6 cm. x 4 cm. x bone deep on right side of posterior aspect of skull, 10 cm. above right ear. Shape circular, margin inverted. Blackening, tattooing and scorching present.

� In internal examination, right perietal and occipital bones were fractured. Membrances were lacerated. Brain was lacerated. Twelve small pellets were recovered from the brain.

� Semi half digested food was found in the stomach. Gases and faecal matter were found present in the small and large intestines.

According to Dr. Gupta, the death of deceased was caused due to the coma as a result of firearm injury. Time of death was about one day ago.

After taking the investigation in his hands, S.I. Ram Narayan Singh recorded the statement of Constable moharrir Devi Prasad Dubey and complainant Vinod Giri at P.S. Nand Ganj. Thereafter, he reached the place of incident with the complainant and at his instance, prepared site plan Ext. Ka-7. Three empty cartridges 12 bore were found lying on the place of incident, which were taken into possession in presence of the witnesses and fard Ext. Ka-8 was prepared. Blood stained and simple earth from the place of incident were also collected and were sealed on the spot after filing the same in two separate containers and fard Ext. Ka-9 was prepared in this regard. Search of the accused persons was made and when they were found absconding, non-bailable warrants were obtained. When the accused persons surrendered in the Court, their statements were recorded in District Jail, Ghazipur after seeking permission of the Court. On the basis of the disclosure statements made by the accused Ramayan Giri and Vinod Giri, they were taken into police custody and on the pointing out of accused Ramayan Giri, his licenced S.B.B.L. gun was recovered on 30.5.2001 from his house and fard Ext. Ka-10 was prepared in presence of the witnesses Sita Ram and Kedar Chauhan. Statement of injured Amin Giri was recorded on 24.5.2001 in District Hospital, Ghazipur. Statements of other witnesses were also recorded and after carrying out other necessary formalities about the investigation, charge-sheet Ext. Ka-13 was submitted against all the accused-persons.

Recovered S.B.B.L. Gun No. 1557-94 of the accused Ramayan Giri alongwith three empty cartridges, which were recovered from the place of incident, were sent to the Forensic Science Laboratory, U.P., Lucknow for examination by Ballistic Expert. Blood stained and simple earth, which were collected from the place of incident were also sent for chemical examination to the Forensic Science Laboratory. According to the chemical examination report Ext. Ka-14, human blood was found on blood stained earth and other articles mentioned therein. Ext. Ka-18 is the Ballistic Report, according to which empty cartridges (E.C.-1 and E.C.-3) were fired from licenced S.B.B.L. Gun No. 1557-94 of the accused Ramayan Giri.

On the case being committed to the Court of Session for trial, charge u/s 147/307/302/352/504/506, all read with Section 149, I.P.C. were framed against all the accused persons. Separate charge u/s 148, I.P.C. was framed against the accused Vinod alias Vimal Giri, Ramayan Giri and Rajesh Giri. All the Appellants-accused, pleaded not guilty and claimed to be tried.

The prosecution, in order to prove its case, examined eight witnesses in all. P.W. 1 Vinod Giri is the complainant. He is also the eye-witness of the incident. He has proved written report Ext. Ka-1. In his statement, which was recorded on 23.5.2002. P.W. 2 Amin Giri is the injured. P.W. 3 Ekhlakh Ahmad had carried the dead body of the deceased Anil Giri with the help of Constable Ram Sagar Singh for post-mortem examination. This witness has also carried the recovered articles to Forensic Science Laboratory, Lucknow for examination. P.W. 4 Dr. V.K. Singh has proved the injury report Ext. Ka-3 of injured Amin Giri. According to him, the injured had sustained firearm injuries, which were possible to be caused on 14.5.2001 at about 2.45 p.m. P.W. 5 Dr. D.K. Gupta has proved post-mortem report Ext. Ka-4/1. He has stated that the death of deceased was possible to be caused on 14.5.2001 at about 3 p.m. It is also stated by this witness that the firearm injury sustained by the deceased was sufficient in the ordinary course to cause the death. P.W. 6 Constable moharrir Devi Prasad Dubey had scribed the chik F.I.R. Ext. Ka-5, which has been proved by him. Copy of G. D. of registration of the case Ext. Ka-6 also has been proved by P.W. 6. P.W. 7 Ram Narayan Singh, is the Investigating Officer, who has proved various papers as stated hereinabove. P.W. 8 S.I. Ram Singh has proved the inquest report Ext. Ka-20 and connected papers Ext. Ka-21 to Ext. Ka-24.

In their statements recorded u/s 313, Code of Criminal Procedure Code. the accused persons denying all the allegations of prosecution have stated that due to enmity and collusion of the police, they have been falsely implicated in this case.

In defence, the accused persons have got the B.H.T. Ext. Kha-1 proved by P.W. 4 Dr. V.K. Singh. They have also filed fard khatauni for the year 1408 fasali, copy of the charge-sheet of Case Crime No. 65 of 1976 and copy of the judgment dated 14.2.1979 of S.T. No. 181 of 1977, State v. Arjun and Ors. passed by II Ird Additional Sessions Judge, Ghazipur with list 65-B. These papers are kept in the lower Court record being paper Nos. 66-B, 67-B/2 and 68-B/2.

The learned trial Court having taken the entire evidence into consideration, convicted and sentenced the accused-Appellants as mentioned hereinabove in para 1. Hence, this appeal.

We have heard Sri. Alok Ranjan Mishra, learned amicus curiae appearing on behalf of Appellants, Sri. R.K. Singh, learned A.G.A. for the State and Sri. Rahul Mishra, holding brief of Sri. Apul Mishra, Counsel for the complainant.

Regarding the incident in which the injured Amin Giri and deceased Anil Giri had sustained firearm injuries, the prosecution has examined two witnesses, namely ; Vinod Giri and Amin Giri as P.W. 1 and P.W. 2 respectively. After appraisal of the statements of these witnesses, the learned trial Court has placed reliance on their testimony. We also have gone through the statements of these witnesses carefully. Both these witnesses have fully supported the case of prosecution in their statements. It is stated by them that when they and the deceased Anil Giri were present on their field on 14.5.2001, the accused Vimal alias Vinod Giri having D.B.B.L. gun. Ramayan Giri armed with S.B.B.L. gun, Rajesh Giri having a country made pistol (katta), Santosh Giri having lathi and Ramashray Giri came there at about 2.45 p.m. and on the exhortation of Ramashray, the accused Vimal fired two shots on Amin and Ramayan also fired from his S.B.B.L. gun on Anil, due to which they both sustained injuries. It is further stated by these witnesses that the accused Rajesh also had fired from his country made pistol and he as well as Santosh Giri, who was having lathi, chased them. It is also stated by P.W. 1 and P.W. 2 that when after the incident, they were going to P.S. Nand Ganj by jeep, the injured Anil Giri died in the way. About the motive and enmity, it is stated by P.W. 1 Vinod Giri that village people wanted to construct chakroad through the fields and when Ramayan and Ramashray constructed walls in their land and Gopal Giri also raised the wall in his land, then they (P.W. 1 and P.W. 2) also declined to construct the chakroad from their fields, due to which the accused persons became angry with them. Both these witnesses were subjected to lengthy cross-examination, but nothing material could be elicited from their mouth so as to discard the credit-worthiness of their statements. There is no material contradiction in the testimony of these witnesses. Therefore, the learned trial court did not commit any illegality in placing reliance on the testimony of these witnesses, whose testimony, in our opinion, is wholly reliable. P.W. 2 Amin Giri is the injured, who had sustained very serious injury in the incident. Hence, his presence on the place of occurrence cannot be doubted. His injury report Ext. Ka-3 shows that he had sustained firearm wound of entry, which was cavity deep, having its corresponding exit wound. In our opinion, this injury cannot be got fabricated. Injured Amin Giri was medically examined by Dr. V.K. Singh (P.W. 4) on 14.5.2001 at 4.50 p.m. in the District Hospital, Ghazipur. Lengthy cross-examination has been made from P.W. 4 also on behalf of the accused persons, but there is nothing in his cross-examination, on the basis of which his testimony can be said to be unreliable. According to this witness, preliminary treatment was given to the injured Amin Giri at P.H.C., Nand Ganj, from where he was referred to District Hospital, Ghazipur. B.H.T. Ext. Kha-1 has been got proved by the Counsel of accused persons from P.W. 4 in his cross-examination. From the Bed Head Ticket, this fact is borne out that injured Amin Giri was admitted in the hospital on 14.5.2001. There is no material infirmity in the statement of the injured Amin Giri and on the basis of his testimony, it is fully proved beyond reasonable doubt that he had sustained injuries at his field on 14.5.2001 at about 2.45 p.m. by firing on him by the accused Vimal Giri. It is also proved on the basis of the testimony of this witness that the accused Ramayan Giri had fired from S.B.B.L. gun on Anil Giri, due to which he had sustained injuries and when he was being carried to P.S. Nand Ganj, he succumbed to the injuries in the way. Active participation of the accused Ramashra, Rajesh and Santosh also has been established on the basis of the testimony of injured Amin Giri. The testimony of Amin Giri has been fully corroborated by P.W. 1 Vinod Giri, whose testimony is also worthy of reliance. This witness also has proved beyond reasonable doubt that the accused Vimal alias Vinod Giri had caused firearm injury to Amin Giri and co-accused Ramayan Giri had fired on the deceased Anil Giri, due to which he had sustained injuries. The learned trial court after proper appreciation of the evidence has drawn right conclusion.

The ocular evidence of P.W. 1 and P.W. 2 is fully corroborated in material particulars by medical evidence. As mentioned hereinabove, from the injury report Ext. Ka-3 of injured Amin, it is established that he had sustained firearm injuries of very serious nature. On the basis of the post-mortem report Ext. Ka-4/1 also, it is established that the deceased Anil Giri had sustained firearm injury. There is no material inconsistency in oral and medical evidence.

The ocular evidence of the witnesses Vinod Giri and Amin Giri further finds corroboration from the reports Ext. Ka-14 and Ext. Ka-18 of Forensic Science Laboratory, Lucknow. From the report Ext. Ka-14, it is established that human blood was found on the blood stained earth, which was sent for chemical examination alongwith simple earth. From the fard Ext. Ka-9, which has been proved by P.W. 7 Ram Narayan Singh (Investigating Officer), it is established that blood stained and simple earth were collected from the place of incident as shown in the site plan (Ext. Ka-7). As such it is proved that the incident in which the deceased Anil and injured Amin had sustained firearm injuries had occurred at the places shown in site plan, from where the blood stained and simple earth were collected by the Investigating Officer during investigation. From the testimony of S.I. Ram Narayan Singh, this fact is also established that on the basis of the disclosure statement made by the accused Ramayan Giri during his interrogation, he was taken into police custody by the order of the Court and on his pointing out, his S.B.B.L. Gun No. 1557-94 was recovered from his house on 30.5.2001, vide fard Ext. Ka-10. It is also established on the basis of the testimony of P.W. 7 that three empty cartridges 12 bore were found lying on the place of incident, which were taken into possession, vide fard Ext. Ka-8. These three empty cartridges and the recovered S.B.B.L. Gun No. 1557-94 of the accused Ramayan Giri were sent for examination by Ballistic Expert to Forensic Science Laboratory, Lucknow. The report Ext. Ka-18 shows that two empty cartridges (E.C.-1 and E.C.-3) were fire from the S.B.B.L. Gun No. 1557-94. It is not disputed that Gun No. 1557-94 was the licenced gun of accused Ramayan Giri. Thus, it is fully proved beyond reasonable doubt that the licenced gun of the accused Ramayan Giri was used in the incident, which had taken place on the field of complainant.

The testimony of the injured Amin Giri was assailed by the learned amicus curiae appearing on behalf of Appellants contending that there is contradiction on the point of direction of fleeing away of the accused persons after the incident, as in the site plan Ext. Ka-7, the accused persons have been shown to have fled away towards north-west, whereas the injured Amin Giri (P.W. 2) has stated in his statement that after causing injuries to him and his brother Anil, the accused persons went away towards north side and after giving threatening they fled away towards eastern side. It was also submitted by learned amicus curiae in this context that there is contradiction in the F.I.R. and the statement of P.W. 1 Vinod Giri on this point, as according to the F.I.R., the accused persons are said to have fled away after the incident towards north-eastern side, whereas the complainant Vinod Giri in his statement as P.W. 1 has stated that after the incident, the accused persons fled away towards western and north side. Although, there is contradiction in the statement of injured Amin Giri and site plan as well as in the statement of P.W. 1 Vinod Giri and F.I.R. about the direction of fleeing away of the accused persons after the incident, but in our opinion on the basis of such contradiction, otherwise wholly reliable testimony of the injured Amin Giri and complainant Vinod cannot be brushed aside, because these contradictions are not so material as to make the testimony of these witnesses unreliable.

Next submission made by learned amicus curiae was that there is material inconsistency in ocular and medical evidence, because ante-mortem injury of the deceased Anil Giri as shown in the post-mortem report Ext. Ka-4/1, which was having blackening, tattooing and scorching, cannot be caused on firing from the distance as shown in the site plan. It was also submitted in this context that there is material contradiction in the statements of the witnesses and site plan about the distance from which the firing is said to have been made. In our opinion, the testimony of the witnesses Vinod Giri and Amin Giri cannot be discarded on the basis of certain variation about the distances of firing as shown in the site plan and statements of these witnesses, because such variation is natural in the testimony of the witnesses. It is well-settled that testimony of witnesses cannot be discarded on the basis of certain minor contradictions. In Abdul Gani and Others Vs. State of Madhya Pradesh, the Hon''ble Apex Court has observed thus:

Discrepancies do not necessarily demolish testimony; delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. The ''sacred cows'' of shadowry doubts and marginal mistakes, processual or other, cannot deter the Court from punishing crime where it has been sensibly and substantially brought home.

In the case of State of U. P. Vs. Shanker, the Hon''ble Apex Court has held that:

Time and again, this Court has pointed out that in this country it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is the function of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is fainted to the core, the falsehood and the truth being inextricably intertwined, that the Court should discard his evidence in toto.

It was further submitted by learned amicus curiae that F.I.R. of this case is ante-timed and could not be registered at the time on which it has been shown to have been lodged. The contention of the learned amicus curiae was that according the F.I.R. Ext. Ka-5, the incident is said to have occurred at 2.45 p.m. on 14.5.2001, whereas the F.I.R. was registered at 3.20 p.m. on that very day after covering distance of 10 km. from the place of incident. It was submitted by learned amicus curiae that in 45 minutes F.I.R. cannot be registered at P.S. Nand Ganj after covering the distance of 10 km. from the place of incident. In our opinion, the F.I.R. cannot be said to be ante-timed merely because it is too prompt. It has come in the statements of the witnesses that they had gone to P.S. Nand Ganj by jeep. Therefore, merely because the F.I.R. was lodged just after 45 minutes from the time of incident after covering the distance of 10 km., it cannot be said that the F.I.R. is ante-timed, because the F.I.R. can be lodged within 45 minutes from the time of incident by performing journey by jeep.

On the point of ante-timing of the F.I.R., it was further submitted by learned amicus curiae that name of the accused persons and details of the weapons carried by them is not mentioned in the inquest report, although two eye-witnesses, namely ; Vinod Giri and Shiv Prasad have signed the inquest report Ext. Ka-19. It was submitted by learned amicus curiae in this context that F.I.R. was not in existence at the time of preparing the inquest report and it was for this reason that the names of the accused persons and details of the weapons carried by them has not been mentioned in the inquest report, although the complainant Vinod Giri and Shiv Prasad s/o Ranjeet, who are said to be the eye-witness of the incident, have signed the inquest report. In our opinion, on the basis of the omission to mention the names of the accused persons and the weapons carried by them in the inquest report, it cannot be said that F.I.R. is ante-timed and was not available at the time of inquest proceedings, because mentioning of the names of the accused persons and the weapons carried by them in inquest report is not the requirement of law. In this context reference may be made to the case of Radhamohan Singh alias Lal Saheb and Ors. v. State of U.P. JT 2006 (1) SC 482 : 2006 (1) ACR 825. In which the Hon''ble Apex Court has observed that mentioning of the name of accused and witnesses or weapons carried by the accused in the inquest report is not the requirement of law and inquest report is confined to the ascertainment of the apparent cause of death and it need not mention, who assaulted the deceased and who were the witnesses of the assault.

The provision for holding of inquest is contained in Section 174, Code of Criminal Procedure. Heading of Section is, ''Police to enquire and report on suicide etc.'' Sub-sections (1) and (2) thereof read as under:

Police to enquire and report on suicide, etc.-

(1) When the Officer-in-Charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation; and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-Divisional Magistrate.

The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation u/s 174, Code of Criminal Procedure is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal and homicidal or caused by animal. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined u/s 175, Code of Criminal Procedure. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings u/s 174, Code of Criminal Procedure. Neither in practice nor in law it is necessary for the person holding the inquest to mention all these details.

In Pedda Narayana and Others Vs. State of Andhra Pradesh, it was held by the Hon''ble Apex Court that the proceedings u/s 174, Code of Criminal Procedure have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings u/s 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court.

In Mrs. Shakila Khader and Others Vs. Nausheer Cama and Others, the contention raised that non-mention of a person''s name in the inquest report would show that he was not an eye-witness of the incident was repelled on the ground that an inquest u/s 174, Code of Criminal Procedure is concerned with establishing the cause of death and only evidence necessary to establish it need be brought out. The same view was taken in Eqbal Baig Vs. State of Andhra Pradesh, that the non-mention of name of an eye-witness in the inquest report could not be a ground to reject his testimony. Similarly, the absence of the name of the accused in the inquest report cannot lead to an inference that he was not present at the time of commission of the offence, as the inquest report is not the statement of a person wherein all the names (accused and also the eye-witnesses) ought to have been mentioned.

The view taken in Podda Narayana v. State of A.P. (supra) was approved by a three Judge Bench in Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, and it was held that the testimony of eye-witnesses could not be discarded on the ground that their names did not figure in the inquest report prepared at the earliest point of time. The nature and purpose of inquest held u/s 174, Code of Criminal Procedure was also explained in the case of Amar Singh Vs. Balwinder Singh and Others,

Thus, it is well-settled by a catena of decisions of the Hon''ble Apex Court that the purpose of holding an inquest is very limited, viz., to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the F.I.R., names of the accused or the names of the eye-witnesses or the gist of their statement nor it is required to be signed by any eye-witnesses.

Therefore, in view of the settled law as stated in above mentioned cases, due to omission of the names of accused persons and weapons carried by them in the inquest report Ext. Ka-19, it cannot be said that the F.I.R. is ante-timed and was not in existence at the time of inquest report. It is worthwhile to mention that the list of the documents which were sent alongwith dead body for the purpose of post-mortem examination is given in the end of the inquest report. A perusal of that list shows that the copy of the chik F.I.R. and G. D. of registration of the case were annexed with inquest report.

It was also submitted by learned amicus curiae that there was no motive for the Appellants to cause the incident and due to previous enmity they have been falsely implicated in this case. It was also submitted by learned amicus curiae that no motive has been mentioned in the F.I.R., but my making improvement, the motive has been shown in the statement of P.W. 1 Vinod Giri. The contention of the learned amicus curiae was that motive is also an essential ingredient of the offence, as no offence is committed without any motive and since in present cases, no motive was mentioned in the F.I.R., hence on this ground, the complicity of the Appellants in the alleged incident becomes doubtful. We are not at all impressed with this contention of learned amicus curiae. It is specifically mentioned in the F.I.R. that there is dispute with the complainant and the accused persons about the rasta. Details of that dispute has been given in the statement of P.W. 1. Therefore, keeping in view the averment made in the F.I.R. about the dispute of rasta between the complainant and accused persons as well as the statement of P.W. 1: it cannot be said that there was no motive for the accused persons to cause the incident. Moreover, it is a case of direct evidence and testimony of P.W. 1 and P.W. 2 regarding complicity of the accused persons in the alleged incident is worthy of reliance and hence the weakness or absence of motive looses significance. In the case of Nathuni Yadav and Ors. v. State of Bihar and Anr. XXXIV (1997) ACC 576, the Hon''ble Apex Court has made the following observations regarding motive:

Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impells a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in ''Reg v. Palmer'' thus: "but if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives ; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties."

The Hon''ble Apex Court in the case of Molu and Others Vs. State of Haryana, has held as under in para 11 of the report at page 2505:

It is well-settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes into motive is clear and can be proved and sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye-witnesses is creditworthy and is believed by the Court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant.

In the case of Suresh Chandra Bahri Vs. State of Bihar with Gurbachan Singh, , the Hon''ble Apex Court has observed as under regarding motive in para 21 of the report at page 2429:

Sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime.

Having regard to the observations made by Hon''ble Apex Court in aforesaid cases, interference by this Court in the impugned judgment cannot be made merely due to absence or weakness of motive, as the complicity of the Appellants-accused in the alleged incident has been proved beyond reasonable doubt on the basis of the evidence led by the prosecution.

Regarding the testimony of P.W. 1 and P.W. 2, it was vehemently contended by learned amicus curiae that both these witnesses are interested persons being the close relative of the deceased and hence merely on the basis of the testimony of these witnesses, conviction of the accused persons is bad in law. It was also submitted in this context by learned amicus curiae that no independent witness has been examined by the prosecution, although Shiv Prasad s/o Ranjeet and some other people are said to have reached at the place of incident on hearing the noise. The contention of learned amicus curiae was that in the absence of testimony of independent witnesses, it is not safe to place reliance on the testimony of P.W. 1 and P.W. 2, who are real brother of deceased. This submission made by learned amicus curiae has got no force. As we have held hereinabove, the testimony of P.W. 1 and P.W. 2 is worthy of reliance. Therefore, their testimony cannot be discarded merely because they both are the real brothers of the deceased. The law is well-settled that if testimony of any witness is found worthy of reliance, then his testimony cannot be brushed aside on the ground that he is relative to the deceased or victim.

In the case of Dalip Singh and Others Vs. State of Punjab, the Hon''ble Apex Court has held as under:

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 alongwith 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.

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.

Again in Masalti Vs. State of U.P., the Hon''ble Apex Court observed thus:

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.

In Israr v. State of U.P. LI (2005) ACC 113 : 2005 (1) ACR 798, rejecting the concept of discarding a witness on the ground of relationship, the Hon''ble Apex Court in para 12 of the judgment held as under:

...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 in Galivenkataiah v. State of A.P. LX (2008) ACC 370 : 2008 (2) ACR 2092, in which reference has been made to some other cases also.

Therefore, having regard to the observation made by the Hon''ble Apex Court, the testimony of P.W. 1 and P.W. 2 cannot be discarded merely on the ground that they are real brothers of deceased as their testimony is convincing and worthy of credence which finds corroboration from medical and other evidence on record. In our considered opinion, the testimony of these witnesses cannot be discarded for non-examination of Shiv Prasad or other independent persons, who are said to have reached at the place of incident on hearing the noise, as generally the people avoid to appear as witness, even if they had witnessed the incident.

Hon''ble Apex Court in the case of Appabhai and Another Vs. State of Gujarat, has observed thus:

...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 1220, the Hon''ble Apex Court in para 31 of the judgment 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 not 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.

It was further submitted by learned amicus curiae that F.I.R. of this case was sent with great delay to the concerned Magistrate and on this ground, it can be said that F.I.R. was not registered on 14.5.2001. It was submitted by learned amicus curiae in this context that the C.J.M., Ghazipur had seen the F.I.R. on 23.3.2001, as is evident from endorsement made on chik F.I.R. Ext. Ka-5, which shows that compliance of Section 157, Code of Criminal Procedure was not made in present case, which is fatal to the prosecution. We are not impressed with this submission. Although, the F.I.R. is shown to have been seen by C.J.M., Ghazipur on 23.5.2001, but on this ground, it cannot be inferred that the F.I.R. was not despatched from the police station promptly. Moreover, on the basis of the statement of Investigating Officer S.I. Ram Narayan Singh (P.W. 7), this fact is borne out that investigation was started immediately after registration of the F.I.R. on 14.5.2001. Therefore, delay, if any, in despatching the F.I.R. to the concerned Magistrate will not be fatal in present case. In The State of Karnataka Vs. Moin Patel and Others, the Hon''ble Apex Court has held as follows:

The matter can be viewed from another angle also. It has already been found by us that the prosecution case that the F.I.R. was promptly lodged at or about 1.30 a.m. and that the investigation started on the basis thereof is wholly reliable and acceptable. Judged in the context of the above facts the mere delay in dispatch of the F.I.R.- and for that matter in receipt thereof by the Magistrate-would not make the prosecution case suspect for as has been pointed out by a three-Judge Bench of this Court in Pala Singh v. State of Punjab, the relevant provision contained in Section 157, Code of Criminal Procedure regarding forthwith dispatch of the report, (F.I.R.) is really designed to keep the Magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and if necessary to give proper direction u/s 159, Code of Criminal Procedure and therefore if in a given case it is found that F.I.R. was recorded without delay and the investigation started on that F.I.R. then however, improper or objectionable the delayed receipt of the report by the Magistrate concerned, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable.

Therefore, keeping in view the aforesaid observations made by Hon''ble Apex Court, on the basis of delay, if any, in despatching the F.I.R. to the concerned Magistrate, the case of the prosecution cannot be brushed aside.

About the complicity of the Appellants Ramashray Giri, Rajesh Giri and Santosh Giri, it was submitted by learned amicus curiae that these accused did not cause any injury to the deceased or injured and hence for want of any overt act, these accused deserve to be acquitted, as they have been falsely made accused. We are not impressed with this submission also. Active participation of the accused Ramashray Giri by exhorting other accused and firing by Rajesh Giri from katta on the complainant and chasing the complainant by the accused Santosh Giri having lathi as member of unlawful assembly has been fully established on the basis of testimony of P.W. 1 and P.W. 2. Therefore, the learned Sessions Judge did not commit any illegality in convicting and sentencing these accused also with aid of Section 149, I.P.C. The Hon''ble Apex Court has consistently held in numerous decisions that overt act is not the requirement of law to attract Section 149, I.P.C. and presence of accused as member of unlawful assembly is sufficient for conviction, even if no overt act is made. [See Yunis @ Kariya etc. Vs. State of Madhya Pradesh, ; Bhargavan and Others Vs. State of Kerala, Sri. Gopal and Anr. v. Subhash and Ors. XLVIII (2004) ACC 618 : 2004 (2) ACR 1786; State of Maharashtra v. Kashi Rao and Ors. XLVII (2003) ACC 1136 : 2003 (3) ACR 2955 and Ram Dular Rai and Ors. v. State of Bihar XLVIII (2004) ACC 228 : 2004 (2) ACR 1750 . The accused Ramashray, Rajesh Giri and Santosh Giri were not mere onlookers, but they were members of unlawful assembly and they had actively participated in the incident as stated hereinabove. Therefore, these accused cannot be acquitted merely because they did not cause any injury to the injured or the deceased as contended by learned amicus curiae.

It was also submitted by learned amicus curiae that the accused Ramashray Giri was witness against the father of complainant in the F.I.R. of Case Crime No. 65 of 1976, Under Sections 307 and 323, I.P.C. and on the basis of the enmity of that case, he has been falsely implicated in present case. This submission also has got no force. On the basis of the charge-sheet of Case Crime No. 65 of 1976, S.T. No. 181 of 1977 was registered against Arjun Giri (father of the complainant) and two other persons namely, Jokhu Giri and Dharm Raj Giri, who by the judgment dated 14.2.1979 were convicted and sentenced, but the judgment paper No. 68B/2 in trial court file of S.T. No. 181 of 1977 shows that Ramashray Giri had not deposed in that case against father of complainant. Therefore, it cannot be said that being the witness in the F.I.R. of Case Crime No. 65 of 1976, the accused Ramashray Giri has been falsely roped in this case.

It was vehemently contended by learned amicus curiae that exit wound as shown in the injury report Ext. Ka-3 of the injured Amin was smaller than the entry wound and hence on this ground, the case of prosecution becomes doubtful. Although, from the injury report Ext. Ka-3/1 of the injured Amin (P.W. 2), this fact is borne out that dimension of firearm entry wound was 6 cm. x 3 cm. x cavity deep, whereas the dimension of exit wound was 4 cm. x 2 cm. x cavity deep, but on this ground, the case of the prosecution cannot be said to be doubtful. This aspect has been dealt with in detail by learned trial Judge in the impugned judgment. We fully agree with the findings recorded by learned trial Judge on this issue and no interference can be made by this Court in the impugned judgment merely because the exit wound was smaller than entry wound.

In view of the forgoing discussion, the appeal has to be dismissed, as the learned trial court after properly appreciating the entire evidence has rightly convicted and sentenced the Appellants for committing the murder of deceased Anil Giri and making attempt to commit the murder of injured Amin by causing injuries to them by means of firearms.

Consequently, the appeal is dismissed. The Appellant Ramayan Giri is undergoing sentence in jail. He shall be kept there to serve out the remaining sentence. The Appellants Vimal alias Vinod Giri, Rajesh Giri, Ramashray Giri and Santosh Giri are on bail. They shall be taken into custody by the trial court concerned to serve out the remaining sentence. After sending these Appellants to jail for serving out the sentence, their personal and surety bonds shall stand cancelled and the sureties will be discharged.

The office is directed to return the trial court record expeditiously alongwith a copy of this judgment for necessary action. Compliance report will be submitted by the trial court concerned within two months.

The amicus curiae Sri. Alok Ranjan Mishra, advocate, will get Rs. 10,000 (Rupees ten thousand only) as his fee.