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RAM KRIPAL AND OTHERS versus STATE OF U.P.

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Ram Kripal And Others v. State Of U.P. - CRIMINAL APPEAL No. 3023 of 1981 [2007] RD-AH 9164 (14 May 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Criminal Appeal No.3023 of 1981

Ram Kripal and others vs. State of U.P

Hon'ble K.S.Rakhra J.

Hon'ble Vinod Prasad J.

(Delivered by Hon'ble Vinod Prasad, J.)

Raj Nath, his two sons  Yatindra and Surendra, along with  Ram Kripal, Gajendra and Govind were tried by II Additional Sessions Judge, Mainpuri for offences under Sections 147, 148, 307/149, 302/149 I.P.C., police station Kishni, district Mainpuri  in Sessions Trial No.354 of 1978. Finding the case of the accused Govind doubtful trial court acquitted him of the charges  giving him benefit of doubt but convicted rest of the five accused appellants under sections 302/149, 307/149 and 148 IPC and sentenced them to life imprisonment under Sections 302/149, 5 years RI under section 307/149 IPC  and 2 years R.I. under Section 148 I.P.C.vide his impugned judgement and  order dated 2.12.1981which conviction and sentence has been questioned  by the five appellants in this appeal.

The background facts against the appellants are that the informant Vijay Bahadur is a resident of village Sakaragarhi, P.S. Kishni, district Mainpuri. There was a litigation between Smt. Rama Devi and appellant Raj Nath resident of Nagla Tara in which Raj Nath lost from the court. In the said litigation informant Vijay Bahadur had helped Smt. Rama Devi. Four months prior to the incident Rama Devi had sold 16 Bighas of  her land to Lokeshwar Nath PW 2, nephew of informant, which sale was not relished by the appellant Raj Nath and his sons and they  started nurturing animosity from the informant. On 18.5.1978 appellant  Raj Nath and others plucked Jackfruits from  trees  standing over the land purchased by Lokeshwar Nath regarding which an FIR was lodged by him.

On the date of the incident 5.6.1978 at 6.00 P.M. Vijay Bahadur along with his sons Narendra Nath and Mahendra accompanied by Lokeshwar Nath and Shrawan Kumar had gone to the house of his cousin  Ram Prakash in village  Nagla Tara, also the  village of the accused, for hearing Bhagwat and to  participated in the feast thereafter. After taking meal they were returning to their village along with Murari Lal and  Mitthu Lal Gadaria. When they reached near the house of Kalka Prasad at 6.00p.m.then the accused appellants Raj Nath his sons Satyendra and  Surendra, Gajendra, Ram Kripal and Govind came there from the south western corner of the brick wall and instigated that they will teach a lesson to Lokeshwar Nath for purchasing the land and immediately thereafter appellant Raj Nath with his licensed gun and rest of the appellants with their countrymade pistol opened fire at the prosecution party. Lalit Kumar sustained gunshot injury and died instanteneously.  Narendra Nath and  Shrawan Kumar sustained firearm injuries and fell down after two to four paces. Lokeshwar Nath and Mahendra Nath also sustained firearm injuries. Gun fire attracted Prem Narayan and many others to the place of the incident. When the injured were being transported to the hospital in the bullock cart by the informant  then Narendra Nath injured lost his life in the way.  Shrawan Kumar, Mahendra and Lokeshwar Nath were dispatched to the District Hospital, Mainpuri. Informant got the F.I.R. (Ex. Ka-7) of the said incident scribed through Arun Kumar and lodged it at police station Kishni on the same day at 10.30p.m.covering a distance of 8 miles south. Lajja Ram P.W.4 Constable clerk prepared the chik F.I.R. Ex. Ka-6 and G.D. entry Ex. Ka-7 and the investigation was immediately engineered by Mahendra Prasad Singh, S.O. P.W.10.

Investigating Officer proceeded to the village Kusmara where the corpse of Narendra was lying and there he conducted the inquest report on his dead body as Ex. Ka38. He further prepared the photolash, challanlash etc. as Ex.-39 to Ka-49 and after sealing the dead body handed it over to the  Constable Chandra Lal and Chowkidar Sita Ram for carrying it to mortuary for the purpose of autopsy. He collected the cloths, Rajai, bed sheet etc. from  beneath the corpse of Narendra Nath and prepared its recovery memo Ex. Ka-42 and prove those  materials as material exhibits 17 to 19. Thereafter he came to the place of the incident in village Nagla Tara near the dead body of Lalit Kumar and conducted the inquest Ex. Ka-43 and prepared  other relevant documents Ex. Ka-44to Ka-46 and handed over the dead body to Ram Swaroop,Constable for being carried to the mortuary. Thereafter he conducted spot inspection and prepared site plan Ex. Ka-47 collected blood stained and plain earth Ex. Ka-48. He also recovered empty cartridges (material Ex.1 to3) from the roof of Kalka Prasad and prepared its recovery memo Ex. Ka-49. He thereafter arrested appellant Ram Kripal and recovered countrymade pistol and three cartridges from him. On 5.6.1978 he recorded the statement of the informant and thereafter in the morning he prepared the inquest report of Narendra Nath deceased who had exapired in the hospital at 5.20 a.m. next day. Thereafter he was transferred.Shrawan Kumar also lost his life after four days in the hospital  because of the sustained injuries in the incident.

The post-mortem examination on the dead body of  Shrawan Kumar was conducted on 10.6.1978 at 10.00a.m. He was found to have sustained six gunshot wounds of entries referred to below:-

1)Gun shot wound of entry size 0.3 c.m. x 0.3 c.m., blackening present on left deltoid prominance in an area of ten c.m.

2)Three guns shot wound entry size 0.3 c.m. x 0.3 c.m. on left side of upper portion of chest in an area of 7 c.m.

3)Gun shot wound of entry 4 c.m. x ½ c.m. on left side of face, blackening present just above the left angle of mouth.

4)G.S.W. of entry 0.3 c.m. x 0.3 c.m. blackening present, 2c.m. below left lower eye lid.

5)G.S.W. of entry 0.3 c.m. x 0.3 c.m. blackening present, 1 c.m. below the (R) eye.

6)G.S.W. of entry 0.3. c.m. x 0.3 c.m., 5 c.m. Above (R)eyebrow on (R) side of forehead.

The autopsy on the dead body of Lalit Kumar was preformed on 6.7.1978 at 3.30p.m. His age was found to be 16 years and there were following injuries on his body:-

1)37 gunshot wound of entry in an area of 21 c.m x 13 c.m. on the Rt. Side head, forehead & temple each size 0.3 c.m. x 0.3 c.m. x cranial cavity. S/c deep divided inward straight. No blackening, tattooing present.

2)Two G.S. wound of entry each 0.3 c.m. x 0.3 c.m. x S/c deep on the Rt. side top of shoulder  2 c.m. apart, no blackening & tattooing seen.

3)Abrasion 1 c.m. x 1 c.m. on the back of Rt. wrist.

4)One G.S. wound of entry 0.3 c.m. x 0.3 c.m x S/c on the left supra clavicular fossa 1 c.m. above the left clavicle.

          The autopsy on the dead body of Narendra Nath was performed on 6.7.1978 at 5.20p.m. His age was 25 years and following injuries were found on his body.

1)Multiple gunshot wound of entry each 0.3 c.m. x 0.3 c.m. x cavity deep in both side abdomen & two on left side chest  & 2 Rt. Axillary line. No blackening & tattooing seen.

2)One G.S. wound of entry 0.3 c.m. x 0.3 c.m. x S/c on the front & Rt. Thigh. Upper part.

3)Two G.S. wound of entry each 0.3 c.m. x 0.3 c.m. x S.C. 2 c.m. apart  on the front of left thigh upper part.

The autopsy on the dead body of the deceased Mahendra Nath was conducted on the same day 7.6.1978 at 5.00p.m.and  his age was found to be 12 years and following ante-mortem injuries were found on his body:-

1)6 G.S. wound of entry each size 0.3 c.m. x 0.3 c.m. x S/C on the back of Rt. hand, forearm & back of left arms lower part in an area of 30 c.m. x 2 c.m. No blackening & tattooing seen.

2)9 G.S. wound of entry 5 on the post axillary line of the abdomen 4 on the outer part of Rt. Buttock in an area of 28 c.m. x 4 c.m. No blackening & tattooing seen.

3)3 G.S. wound of entry on medical side of left thigh in an area of 11 c.m. x 2 c.m. No blackening, tattooing seen, each size 0.3 c.m. x 0.3 c.m. x S/c deep.

The report of Forensic Science Laboratory, Lucknow, U.P. dated 31.7.1979 brought out the fact that cartridges  E.C.-3 was fired from countrymade pistol marked as  1/79.

After submission of the charge sheet first Additional Sessions Judge, Mainpuri framed charges against all the six persons under Sections 148, 302/149 for  murdering the  four deceased persons and also under Section 307/149  I.P.C. on 1.6.1979.

To prove the guilt of the appellants in the trial prosecution examined ten witnesses. Vijay Bahadur P.W.1, Lokeshwar Nath P.W.2 were the witnesses of fact. Doctor S.S. Agawal P.W.3, Lajja Ram, Constable Clerk P.W.4, Mukta Prasad, S.I. P.W.5, Doctor Anil Kuma Medical Officer Government Medical Hospital P.W.6, S.O. Layak Singh P.W.7, Doctor S.V. Agrawal P.W.8, and  Ram Asray Pandey Senior Scientific Officer, Forensic Science Labrotary, Lucknow P.W.9 all were the formal witnesses. S.I. M.P. Singh was the Investigating Officer.

The accused persons in their statement under Section 313 Cr.P.C. recorded on 13.11.1981 took the defence of false implication. Govind accused  also claimed indetification.

As has been stated above the trial court acquitted Govind accused giving him benefit of doubt but convicted rest of the accused  appellants under Sections 148, 307/149 and  302/149 I.P.C. and sentence them to two years R.I. on the first count, five years R.I. on the second count and life imprisonment on the third count vide his impugned judgement and order  dated 2.12.1981 which convictions and sentences  are  under challenged in this appeal.

Vijay Bahadur, informant, P.W.1 in his deposition before the court narrated the pedigree of the prosecution side and deposed that his father Sughar Lal had three issues- informant himself , Ram Avtar and Taj Bahadur. Shrawan Kumar is the son of Taj Bahadur and Narendra and Mahendra (the two deceased) were his sons. Kaushlendra and Lokeshwar Nath are his nephews being sons of Ram Avtar. Lalit Kumar deceased was the son of Kaushlendra. In the incident in question Shrawan Kumar, Narendra Nath, Mahendra Nath and Lalit Kumar lost their lives and Lokeshwar Nath had sustained injuries. Narrating the pedigree of the accused side he had  stated that Raj Nath appellant was a resident of village Nagla Tara, which is at the distance of two miles from his village. Raj Nath's father were two brothers Rang Lal and Dev Nath. Raj Nath had two sons Surendra and Yatindra, who are the accused in this case. Rameshwar was the son of Rang Lal. Gajendra appellant is the son of Rameshwar. Govind  (acquitted accused) was the son of Sardhu of Raj Nath and Ram Kripal son of Baij Nath is the maternal cousin brother of Raj Nath. All the accused persons were known to the informant  from before.He further deposed that Smt. Rama Devi of village Nagla Tara was the daughter of Jugal Kishore and she  had 21 Bighas  of land.  In the consolidation proceedings Rama Devi had litigated with another Rama Devi and in that litigation informant had filed an objection against Salik son of Raj Nath appellant. In the aforesaid litigation Lokeshwar Nath was the parokar of Rama Devi who had  succeeded in the litigation. Because of loosing in litigation accused persons harboured animosity from the family of the informant. Three and half years prior to the date of incident Rama Devi had sold 16 Bighas of her land to Lokeshwar Nath, which had further aggrevated the harboured animosity. In the 16 Bighas of purchased land there were two Jack fruit trees which had small Jack fruits in it. On 18.5.1978, appellant Raj Nath and others had plucked fruits  from those trees regarding which Lokeshwar Nath  had lodged  a F.I.R at  the police station Kishni on 19.5.1978. He further stated the incident in question occured on 5.6.198. On that date there was a recital of Bhagwat-Katha in the house of Ram Prakash his  cousin brother in village Nagla Tara. He along with the  four deceased Lalit, Mahendra, Narendra and Shrawan as well as injured Lokeshwar Nath had gone there  on the invitation of the  feast because of the said recital. After the feast they were returning to their village along with  Mitthoo Lal, Murari Lal,  and Sita Ram. At 6.00 p.m. the prosecution party reached towards western side of  the house of Kalika Prasad then  they saw all the appellants standing on the parapet of the house of Kalika Prasad, who were earlier way laying  behind a wall. Appellant Raj Nath instigated and immediately thereafter he with his gun and rest of the accused with their country made pistols started shooting towards the prosecution party. Lalit Kumar sustained gunshot injuries and died instantaneously. Lokeshwar Nath, Narendra, Mahendra and Shrawan Kumar sustained gunshot wounds. Prem Naryan and many other  people had collected there  who all  had witnessed the incident. The accused persons made their escape good thereafter. Informant got the cart arranged in quarter  and  two hours and carried the injured to Kusmara, hospital. Injured Narendra lost his life at 9.00 p.M. near the said  hospital. Rest of the three injured Shrawan, Mahendra and Lokeshwar Nath were dispatched to the  Government Hospital, Mainpuri for treatment. He got the F.I.R. Ex.Ka-1 scribed through his nephew Arun Kumar and lodged it at  the police station Kishni at 10.30p.m. the same day for offences under Sections 307/302 I.P.C. Following day injured Mahendra  had also expired. Shrawan Kumar battled for his life for four days and then scummed to his injuries and died. Lokeshwar Nath was treated for a month for the sustained injures.

In the cross-examination he admitted that Raj Nath appellant had won  a litigation regarding a grove and he and his family members had lost. In the litigation between Rama Devi and Raj Nath, appellant Raj Nath had fought the litigation from the side of his sons Shailesh. This witness was subjected to searching cross-examination wherein he  had stated that he had reached in the feast at 12 in the noon and no  written  invitation was given for the said feast. He further deposed that they had started for the feast at 12 or 12.30 in the noon and the feast has also started on an around the same time but they had taken meal at 4.00 or 4.30p.m. Heshowed his ignorence as to whether the two  deceased Lalit Kumar and Narendra had feasted or not. He further deposed that 20-25 people have eaten meals along with him, which included persons from village Naurari,Nagla Tara and Dhram Ganj etc. He further deposed that the house of Kalika Prasad was 20-25 paces from the house of Ram Prakash were the Bhagwat recital was organized. He had further deposed regarding the topography  of the site of the incident and had deposed that village Nagla Tara was two miles away of his village. He had said that the boundary wall of the roof was two feet high and first of all appellant Raj Nath had instigated and subsequently all the accused persons had fired. He had further evidenced that after the incident he had arranged the cart form his own village and by the time he had returned along with the cart it was already dark. From the place of the incident he had transported the injured to Kusmara Hospital. He  had further deposed that  Kusmara  had a police out post also but no constable was present there nor the F.I.R. was registered at the said out post. He further evidenced that in Kusmara he waited for an hour and a quarter arranging for sending the injured persons to Mainpuri hospital. He had further deposed  that son of Kalika Prasad had accompanied the injured to Mainpuri hospital in a bus. He had got the F.I.R. scribed in Kusmara itself and from the police station after lodging of the FIR  he had returned to Kusmara in a police jeep. From his further cross-examination it has come out that village Nagla Tara, village of incident was three miles from Kusmara. He had  denied the suggestions that no incident had occurred in village Nagla Tara and that he had not witnessed any incident which had occurred near the pond and after due consultation a false F.I.R. was got lodged against the appellants.

Lokeshwar Nath injured P.W.2 supported prosecution version in all material  allegations and had deposed that he had done parvi on behalf of the Rama Devi and had purchased 16 Bighas of land from her. He had proved his report regarding theft of Jack fruit as Ex. Ka-2. Regarding the  assault he had supported the statement of the informant and had deposed that  after the incident they had reached Kusmara  alonwith  injured persons  at 8.30 p.m. where Narendra had lost his life. Batteling for survival Mahendra also lost his life after two days and  four days after the incident  Shrawan Kumar also succumbed to his injuries. In his cross-examination he has deposed that the consolidation litigation was fought between Rama Devi and another  Rama Devi regarding the same piece of land which was purchased by him along with Jack fruit trees. In his  cross-examination he has stated that  shooting were made from the height of 5 or 6 hand and he had fallen down after sustaining the gun shot injuries. Many villagers of village Nagla Tara had also collected there but he had no conversation with them. From his deposition the defence has not been  able to cull out anything material.

Dr. S.S. Agarwal PW 3 has deposed that he had examined Shrawan Kumar, Vijay Bahadur and Lokesh Nath  on 6.6.1978 at 1.00a.m., 1.15a.m.,  and 1.30 a.m.. respectively and all of them  had sustained  gunshot injuries . He has proved their injury reports as Ex. Ka-3 to Ka-5. In his cross-examination he has stated that all the injuries were round and if the weapon is diagonal the injuries will be oval.

Lajja Ram P.W.4 Head Constable proved the chik F.I.R. Ex. Ka-6 and G.D. entry Ex ka-7 and stated that he had sent the special report through Attar Singh Constable. He had denied the suggestion that the F.I.R. was registered after due consultation and deliberation.

S.I. Mukta Prasad P.W.5had stated before the court that S.I. R.S. Bhadoria had conducted the inquest on the dead body of Mahendra on 7.6.1978and he had proved his hand writing,inquest report  and other relevant papers as Ext. Ka-8 to Ka-13. Nothing material has been brought out from his cross-examination.

Dr. Anil Kumar P.W.6  who had conducted the autopsy on the dead body of Shrawan Kumar on 10.6.1078 at 10.00a.m. had found the age of the deceased to be 15 years and one and  a quarter day had lapsed since his death. On his body doctor found the injuries, which have already been mentioned above. In his cross-examination he has deposed that the deceased had sustained injuries from more than six feet and the gunshot injuries were round in shape.  He had admitted that he had not written the direction and therefore, cannot say from which side the deceased was shot at.

S.O. Layak Singh, P.W.7 the first Investigating Officer besides his description of investigation conducted by him  deposed before the court that he had searched for the accused Raj Nath and Gajendra after the incident but they were not traced out. From the house of Raj Nath he had recovered a licensed D.B.B.L. Gun and had prepared its recovery memo Ex. Ka-15. He had given a report for proceeding under Sections 82/ 83 Cr.P.C. against Raj Nath,Surendra,Satyendra and Gajendra and had proved the said report  and  the attachment memo as Ex. Ka-16 to Ex. Ka-28. No damaging material against the prosecution  has come out from his evidence.

Doctor S.V. Agarwal, P.W.8 has  deposed that he had conducted autopsy on the dead body of Lalit Kumar on 7.6.1978 at 3.30 P.M., who was aged about 16 years and had sustained  above noted gun shot injuries. The same day he had performed autopsy on the dead body of Narendra Nath at 4.30 p.m. and Mahavir at 5.00p.m. Mahavir was found to be aged about 12 years and both the deceased persons had sustained gunshot injuries. He has proved his post-mortem examination reports as Ex. Ka-31 to Ex. Ka-33. He had further deposed that all the injuries could have been caused at the date and time of the incident and were sufficient in the ordinary course of nature to cause death. In his cross-examination he has stated that Lalit Kumar should have taken meal 10 or 12 hours before and Narendra Nath deceased would have taken meal 5 or 6 hours before their death.

Ram Ashrey Pandey P.W.9, Senior Scientist Forensic Science Labrotary,Lucknow has proved his report Ex. Ka-37 and other relevant papers and negatives which indicated that one cartridge was fired from one country made pistol.

S.I. M.P. Singh P.W.10 who is the I.O. of the case has proved various steps of investigation mentioned above. He has been subjected to searching cross-examination wherein he has stated that near the house of Ram Prakash he had found the signs of the feast. He had denied the suggestion that the F.I.R. was not lodged till 6th June and that  he had not mentioned weapons in the inquest reports  as  he was not sure regarding the weapons and later on the F.I.R. was cooked up. He had further denied the suggestion that he had made a fire from  a coutrymade pistol to bloster up the prosecution version and  got it tallied with an empty cartridge from Forensic Science Labrotary.

Trail court found the case of the prosecution proved to the hilt against the appellants and therefore it convicted and sentenced them as has been  stated above and hence this appeal challenging the said judgement of convictions and sentences.

We have heard Sri Satish Trivedi, learned  senior counsel, Sri S.P. Tiwari and Sri Yogesh Agarwal Advocates, on behalf of appellants at a great length and Sri Sayyad Ali Murtza, learned A.G.A. on behalf of the State and have perused the record and the evidences ourselves.

Learned counsel for the appellants contended that in the present case all the injuries found on the body of the deceased were round in shape and therefore prosecution version of firing from the roof is false as in that eventuality the injuries should have been oval in dimension. They further submitted that the stomach position of the deceased persons indicate that they were not shot at soon after taking their meals. They further contended that all the witnesses of fact are related inimical and therefore, no reliance can be placed on their testimony and that the F.I.R. is anti-times and cooked up as in the injury reports it is mentioned that the injured were brought by brother and self. They further submitted that no inquest was conducted before 7.00 A.M.  next day morning whereas the incident occurred the previous evening at 6.00 P.M. and the intervening time was utilised by the prosecution in cooking up the F.I.R. They further contended that one of the appellant Govind has been acquitted and therefore, the evidence of the prosecution  witnesses is not wholly true. They further submitted that the firing was made from a distance and therefore, in injury no.1 of Shrawan Kumar no blackening should have been found which shows that the prosecution witnesses are not truthful. They concludingly submitted that since all the prosecution witnesses were related and there is no independent corroboration from any quarter and that the F.I.R. is anti-timed and medical report and post-mortem report is inconsistent, therefore, the appeal should be allowed and the appellants be acquitted. They half heartedly also argued that the presence of injured witnesses at the spot is no guarantee of  his truthful deposition and the statement of injured Lokeshwar Nath P.W.2  is false statement of fact and his statement under Section 161 Cr.P.C. was recorded  very belatedly because he never wanted to depose falsely. They contended that he was a witness of inquest of Shrawan Kumar deceased  and because he was not ready to support the prosecution version he was not examined by the I.O. at  the time of conducting that inquest. They further contended that Lokeshwar Nath had not sustained any injury for which he could have been treated for a period of one month. On an over all view learned counsels for the appellants submitted that the prosecution has not been able to prove the guilt of the appellants to the hilt and therefore, the appeal deserves to be allowed and the appellants be acquitted.

Learned A.G.A. on the other hand contended that it is an incident which had taken place in the day light in the witnessing of  informant and injured witness (P.W.1Vijay Bahadur  and P.W.2 Lokeshwar Nath) who are reliable witnesses  and the defence has not been able to damage their testimony even slightly. He further submitted that the presence of the aforesaid witnesses of fact on the scene of the incident is well established and there was no motive for them to falsely implicate the appellants. Learned A.G.A.  further contended that it is bizzare to thing that Vijay Bahadur informant will spare the real assailants of the murder of his two sons Mahendra Nath and Narendra Nath and will falsely implicate innocent persons. He further contended that Shrawan Kumar aged about 15 years, Lalit Kumar aged about 16 years and Mahavir aged about 12 years were the young adolescence in the prime of their youth and childhood who have been shot dead by the appellants without any rhyme or reason and there was  no reason for the prosecution to falsely implicate the  appellants. Learned A.G.A. further submitted that there was no light at the place where the dead bodies were lying  at the time when the I.O. reached for conducting the inquest and therefore, the inquest was differed for the next day morning and therefore, there is no delay in conducting the inquest. He further argued that the F.I.R. is prompt and is free from any embellishment and hence is reliable. Concludingly, he submitted that the guilt of the appellants is fully established and the prosecution has successfully proved the charge against the appellants and their  this appeal lacks merit and deserves to be dismissed and their convictions and sentences should be upheld.

We have considered the submissions raised by both the sides in the light of the evidence adduced during the trial and have perused the record and evidences ourselves.

It is an incident which had taken place in day light in the month of June. The appellants were very well known to the prosecution side. Consequently,it is not a case of mistaken identity. The post-mortem report and the injury report of the deceased and the injured persons clearly indicates that all of them had sustained injuries from firearm  and therefore it cannot be said that the prosecution version of causing deaths and  injuries from firearms is not true. It is also perceptible that the F.I.R. had been lodged soon after the incident at 10.30p.m. when the police station was at a distance of 8 miles and the informant had to arrange  for the cart for transporting the injured from the place of the incident to Kusmara hospital , which was at the distance of three kilometres and then he had to arrange for sending the injured persons to the district hospital Mainpuri for treatment and then he had dictated the FIR and there after he started for the police station Kishni to lodged the F.I.R. The defence has not been able to challenge this part of the prosecution version that the informant had taken the deceased from village Nagla Tara to Kusmara and from their the injured persons were sent to  District Hospital, Mainpuri for further management of their injuries and after that the F.I.R. was dictated and scribed and thereafter it was lodged at the police station Kishni. From the evidence of two witnesses of fact nothing has been brought forth to disbelieve this version of the prosecution case  and consequently time taken by the informant in lodging of the F.I.R. is well explained and  we are of that the FIR is prompt and the version given in the F.I.R. is free from any concoction, embellishment and fabrication. Appellants have not been able to examine any defence evidence to show that then incident had not taken place at the time and place alleged by the prosecution even though the incident had occurred in their own village. No co villager had come forward to support the innocence of the appellant which goes a long way to cement the guilt of the appellants.

Coming to the contentions raised  by the learned counsels for the appellants regarding the nature of injuries and it's direction  it is to be noted that all the witnesses of fact had stated that the accused fired from the roof. This part of the  prosecution version is consistent. Only one of the accused was armed with a gun and  rest of the accused persons were armed with a countrymade pistol, which is not a regular factory made weapon. All the countrymade pistol are crudely manufactured weapons and the  cartridges used in these weapons are also locally manufactured. The same standard as that of a factory made weapon and cartridge can not be applied in respect of these weapons. Further the barrel of the countrymade pistol are so small that we cannot expect pellets to have the same trajectory path which we can expect from a regular factory made gun  of a long barrel. Moreover, the injuries noted by the doctor in the post-mortem examination and the injury reports were not calliper measurements. The  size of the injuries  are so small that even an oval injury may look like a  round one. Further there is dearth of evidence as to what was the position of the body of the injured and the deceased vis-a-vis to the accused and the distance between them so as to record a positive finding that such a  nature of injuries could  not be caused to the deceased and the injured from the  roof. Much depends upon a distance from the roof to the place where the deceased and the injured were present and the weapon and the cartridges used. From the cross-examination of the witnesses of fact  the defence has not been able to dislodge the otherwise truthful consistent and cogent evidence of the two witnesses of fact informant Vijay Bahadur P.W.1 and Lokeshwar Nath P.W.2 in this respect. We have also not been able to fetch out any reason as to why the prosecution will level the allegations of firing from a roof if the deceased persons were shot at from the ground. The prosecution would not have to gained  anything by allowing to the accused persons to climb on the roof and made firing  from it killing two adolescences and two  young ones who were unarmed. In this view of the matter we find that contention of learned counsel for the appellants, that the allegation of firing made from the roof alleged by the prosecution is false, is wholly unmerited and therefore, we repel and reject the same.

Coming to the second limb of the argument, learned counsel for the appellants contended that stomach contents does not indicate that the deceased persons had died at the time alleged by the prosecution soon after they had taken meals. In this respect the prosecution witnesses are absolutely clear that they did not know that two of the deceased Lalit and Narendra Kumar had taken any meal or not.  The said fact could not be dislodged  by the defence at all and therefore it can not be said that those two deceased (Lalit and Narendra Kumar) had eaten any thing at all or not. Defence has not examined any witness of their village who had participated in the feast to disprove the evidence of prosecution witnesses in this respect. So far as rest of the two deceased persons are concerned they had died after two and four days after taking meals and during this period their digestive system continued to function and therefore their food contents in the stomach must have passed off. We therefore find ourselves unable to accept the submission of the defence counsels that the incident did not take place after the feast was over.

Coming to the third argument of the learned counsels for the appellants that the F.I.R. is anti-timed and cooked we have already noted above that  the F.I.R.,to us, seems to be prompt without any embellishment and concoction therefore, the said argument of the appellants also does not commend itself and we reject  the same.

Analysing the last submission of the learned counsels for the appellants that the witnesses are related and therefore, they should not be believed, we find that the said argument is also an  unacceptable argument for the reason that merely because the witnesses are related their testimony cannot be thrown away. Truthfulness of a witness depends upon his veracity of  his deposition and not on his relationship. It is not the law that if the witnesses are related they must be dubbed as liars. In the present case, the three boys  aged about 12, 15 and 16  years with a young man of 25 years of age  have been shot dead. Four persons have lost their lives and one person had sustained injuries in the incident. There was no reason for the prosecution to implicate the innocent  persons and spare the real assailants. In such a view merely because Vijay Bahadur P.W.1 and Lokeshwar Nath  P.W.2 are related with the deceased and injured  their evidence cannot be discredited, rejected and  thrown out of consideration. We have found their testimony to be consistent, cogent, reliable and worthy of credence on which implicit reliance can be placed without a second thought.

From the discussions made above we find that the prosecution has successfully proved the charge against the appellants and they  were  rightly held guilty and had been rightly convicted.

We find no force in this appeal and resultantly dismiss it. All the appellants are on bail. They are required to surrender to their bail bonds and surety bonds forthwith.  C.J.M. Mainpuri is directed to take necessary steps immediately to get the appellants arrested. As soon as the appellants are arrested or surrenders before him their bail bonds and surety bonds shall be cancelled and they shall be sent to jail to serve out the sentences awarded on them by the impugned judgement and order.

Let a copy of this order be certified to the trial court forthwith for its intimation and compliance.

Dt.              

Rk/

   


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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