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2010 DIGILAW 106 (PAT)

Islam Son Of Late Md Mushir v. State Of Bihar

2010-01-29

SHYAM KISHORE SHARMA

body2010
JUDGEMENT SHYAM KISHORE SHARMA, J. 1. Both the above appellants have preferred this appeal against the judgment of conviction dated 17/11/1997 and order of sentence dated 19/11/1997 passed by Additional Sessions judge II, Katihar in Sessions Case No.2/262 of 1996 whereby both were convicted for offence punishable under Sec.395 of the indian Penal Code and were sentenced to undergo rigorous imprisonment for 5 years but they were acquitted for the offence under sec.412 of the Indian Penal Code. Co-accused Sallahuddin who also faced the trial was acquitted for offence under Sec.395 read with Sec.120b of the Indian Penal code. 2. According to fardbeyan of Raj Kumar Deb (P. W.12) recorded at 4. A. M. on 10/8/1995 by Sub-Inspector of Police, S. M. Khursheed, officer-in- charge, Balia Belon Police station (not examined), he, Jyotish Lal Yadav and other traders used to do business at Kurum hat within Balia Belon police station in the district of Katihar and after collecting money from various traders, they used to stay at the shop of accused Sallahuddin in the night This was their usual practice. On 9th August, 1995 after attending the work of Hat, informant (P. W.12) and Jyotish Lal Yadav assembled at the shop of co-accused Sallahuddin at about 8.00 P. M. While they were sitting at the shop, co-accused Sallahuddin went out and 10 to 15 minutes thereafter, five miscreants entered into the shop, surrounded the informant and assaulted him and two miscreants whipped out pistols and pointed at the chest of Jyotish lal Yadav and the miscreants took away the bags containing money. 3. On alarm being raised, the Hat people chased the miscreants and after chase they were able to catch both the appellants with looted bags. Thereafter a mob including chaukidars, dafadar and others gathered and on their interrogation, the appellants disclosed their names and the names of their associates who managed to escape as Bhavesh chaudhary, Ramesh Chaudhary, Shankar chaudhary, Mashuwa Chaudhary, Nawajish and Sk. Dukhwa. It was further alleged that on 7/8/1995, accused Sk. Sallauddin had told the accused persons that the traders who assembled at his shop after selling their clothes possessed huge money which can be easily looted. 4. On the date of occurrence, Sk. Sallahuddin left his shop and informed the dacoit. Dukhwa. It was further alleged that on 7/8/1995, accused Sk. Sallauddin had told the accused persons that the traders who assembled at his shop after selling their clothes possessed huge money which can be easily looted. 4. On the date of occurrence, Sk. Sallahuddin left his shop and informed the dacoit. So the dacoity was facilitated and Rs.1750.00 which was in the bag of jyotish Lal yadav and rs.196.00 which was in the bag of informant were looted and later on recovered. For that the present case was registered for offences under Sec.395 and 412 of the Indian penal Code. After completion of investigation, charge sheet was submitted under the aforesaid sections against the appellants and also Sk. Sal!ahuddin. The cognizance was taken and thereafter case was committed to the court of Sessions. Charges under Sections 395/120b of the Indian Penal Code was framed against co-accused Sallahuddin whereas charges under Sec.395 and 412 of the indian Penal Code were framed against these appellants. 5. The accused persons pleaded innocence and preferred to face trial. So the trial proceeded. The defence of the appellants was that they were not amongst the dacoits. They were not arrested at the spot. They were arrested from their village which is adjacent to the village of the informant and looted money was never recovered from their possession. In order to prove its case, the prosecution has examined altogether 12 witnesses. P. W.1 is Fani Gopal Rai who is a Dafadar of the area and claims to be an eye witness of the occurrence. P. W.2 Ramakant Rai and P. W.3 Dhirendra Rai are the Chaukidars. They have been tendered. P. W.4 Pocha Singh has supported the factum of dacoity but he denied that any statement was taken by the police. Later on he declared hostile. P. W.5 ganesh Prasad Yadav has been tendered. P. W.6 Habib has been declared hostile. P. W.7 md. Muzaffar Hussain has been tendered. P. W.8 Rajendra Sharma and P. W.9 Bipin sharma have also been tendered. P. W.10 md. Jamaluddin is a seizure list witness. P. W.11 jyotish Lal Yadav who claims to be an eye witness and victim also. P. W.12 Raj Kumar deb is the informant himself who has also become hostile and has not supported the role of the appellants. 6. The defence has not examined any witness. P. W.10 md. Jamaluddin is a seizure list witness. P. W.11 jyotish Lal Yadav who claims to be an eye witness and victim also. P. W.12 Raj Kumar deb is the informant himself who has also become hostile and has not supported the role of the appellants. 6. The defence has not examined any witness. After considering the evidences and hearing the parties, the trial court came to the opinion that the prosecution was able to prove the charges beyond ail reasonable doubts against the appellants who were convicted and sentenced as mentioned above but another accused Sallahuddin was acquitted from the charges. Most important witness of the occurrence is P. W.12 who is the informant. He has stated in his evidence that he has given information to the police that he was staying in the shop of Sallahuddin after selling the clothes. At about 7.30 to 8.00 P. M. , P. W. ll and others were present. He was in possession of Rs.196.00. At that very time, Sallahuddin went out and after half an hour, 2-3 masque dacoits came and started indiscriminate assault. He and P. W.11 were assaulted and their money was snatched. He has further stated that two dacoits were caught but he has not identified them. Thereafter, he was declared hostile. Therefore, the evidence of this witness is of no help to the prosecution. P. W.11 is a witness and victim of the offence. He has stated that in the evening of about 8.00 P. M. he was staying in the shop of Sallahuddin along with P. W.12. Sallahuddin was in the shop, 7. At that very time, 2-3 dacoits came and started demanding money. They snatched his bag containing Rs.1750.00. Later on chaukidars caught two persons who were the appellants. They made their extra judicial confessions and they were responsible for the offence. He also put his signature on the seizure list The evidence of this witness shows that only on the basis of extra judicial confession, the appellants have been roped with the offence. Another fact in the evidence of this witness is that at the time of occurrence, co-accused Sallahuddin was inside the shop. This fact is neither in the fardbeyan nor in the evidence of P. W.12 so, there is contradiction about presence of sallahuddin who later on made accused. Another fact in the evidence of this witness is that at the time of occurrence, co-accused Sallahuddin was inside the shop. This fact is neither in the fardbeyan nor in the evidence of P. W.12 so, there is contradiction about presence of sallahuddin who later on made accused. Prosecution case is that Sallahuddin left the shop deliberately so that dacoity may be facilitated. If the evidence of this witness is relied upon, there would be controversy in the evidence of P. Ws.1 and 12. Other witnesses are not required to be discussed because either they have been tendered or declared hostile. Only prosecution witness remained to be discussed is P. W.1. He is dafadar and he has stated that he was on his duty along with others namely, P. Ws.2 and 3, Chaukidars Rama Kant Rai and Dhirendra rai. He stated that he heard hulla of dacoits, they went towards that and they caught two persons. They were the appellants. His statement has not been supported by his colleague P. Ws.2 and 3 because the prosecution allowed them to be tendered. 8. So the statement of this witness has remained unsubstantiated mat these appellants were caught after chase. The defence of the appellants is that they are residents of nearby village and their presence nearby occurrence cannot be doubted in view of the fact that according to prosecution case it was a market days and in the rural areas, the villagers remained in the market till late hours. The prosecution has charged them with the commission of dacoity but this fact has neither been supported by the informant nor the seizure list witnesses. There are material contradictions on all the vital points with regard to manner, time and role of the appellants. After analyzing the entire evidences, I came to the opinion that the prosecution has not been able to prove the charges beyond the shadow of all reasonable doubts. 9. So the conviction and sentence of the appellants are fit to be set aside. In the result, this appeal is allowed and the conviction and sentence of the appellants are set aside. The appellants are discharged from the liabilities of their bail bonds. 9. So the conviction and sentence of the appellants are fit to be set aside. In the result, this appeal is allowed and the conviction and sentence of the appellants are set aside. The appellants are discharged from the liabilities of their bail bonds. 18 P. W.7 Baidnath Singh S/o Bikramaditya singh has been examined as a witness to the seizure list in respect of seizure of three 30.06 fired cartridges and one 9mm fired cartridge which were seized from the place of occurrence and he was one of the signatories to the said seizure list. He identified his signature, which was marked as Ext.3/2 on the said seizure list. In cross-examination, this witness has said that he arrived at the place of occurrence at about 6.45 P. M. he further disclosed that when he reached at the place of occurrence, he saw his 7-8 co-villagers were present there. 19. Dr. Ashutosh Kumar has been examined as P. W.8 who had conducted postmortem examination and prepared postmortem report on the three dead bodies. During his examination, he proved the postmortem report. The postmortem report on the dead body of Nandu Chaurasiya has been marked as Ext.5, Postmortem report prepared on the dead body of Hare Ram Rai has been marked as Ext.5/1 and postmortem report held on the dead body of Bir Kumar Singh has been marked as Ext.5/2. In his deposition, p. W.8 has stated that on the dead body of nandu Chaurasiya he found following ante-mortem injuries: External injuries: (i)Lacerated wound on the ventral aspect of upper part of left fore arm size 3"x 1 V2" x muscle deep (ii) (ii) Lacerated wound on the left lateral aspect of the abdomen size 4" x 4" cavity deep, the part of the stomach and large intestine was protruding outside. Internal injuries: On dissection of skull brain matter and menages were intact and pale. On dissection of thorax right thoracic cavity was filled with blood and the lung was lacerated. Right lung was pale in colour. The chambers of the heart were empty. Both the heart and lungs were pale. Diaphram was ruptured. On dissection of abdomen stomach and liver were ruptured. Abdominal cavity was filled with blood. A metallic foreign body resembling bullet was found on the right side of the abdominal cavity. There was 10p C. C. of urine in the bladder. The chambers of the heart were empty. Both the heart and lungs were pale. Diaphram was ruptured. On dissection of abdomen stomach and liver were ruptured. Abdominal cavity was filled with blood. A metallic foreign body resembling bullet was found on the right side of the abdominal cavity. There was 10p C. C. of urine in the bladder. Both the kidneys and spleen were pale in colour. In respect of dead body of Hare Ram Rai, P. W.8 deposed that he found following ante-mortem injuries: external injuries: (i) Lacerated wound on the anterior aspect of the right side of the chest below right cavity lateral part size 1/2" x 1/2" cavity deep it appears to be wound of entry with inverted margin. (ii) Lacerated wound on the anterior aspect of right side of the chest 2" below lateral part of right clavicle with inverted margin 1/2" x 1/2". (iii) Lacerated wound on the anterior aspect of upper part of the right arm with inverted margin 1/2" x 1/2 " and it appears wound of entry. (iv) Lacerated wound on the posterior aspect of right side of the chest with everted margin size 11/2 "x 2". It appears to be wound of exit. (v) Lacerated wound on the posterior aspect of the upper part of the right arm with everted margin size 2" x 2". It appears to be wound of exit. On dissection, internal injuries. On dissection of the skull, brain matter and meninges were intact and pale in colour. On dissection of thorax right thoracic cavity was filled with blood. Right lung was lacerated. A metallic foreign body resembling bullet was found on the right side of thoracic cavity. The left lung was pale in colour. Heart was pale in colour and chambers were empty. The stomach was pale containing 150 cc of partly digested* food. Spleen, both kidneys and liver were pale in colour. Urinary bladder contains 50 cc of urine; on dissection of right upper limb, there was connected fracture of upper part of right humorous. The left lung was pale in colour. Heart was pale in colour and chambers were empty. The stomach was pale containing 150 cc of partly digested* food. Spleen, both kidneys and liver were pale in colour. Urinary bladder contains 50 cc of urine; on dissection of right upper limb, there was connected fracture of upper part of right humorous. Similarly, on the dead body of Bir Kumar Srngh,p. W.8 deposed that he found following injuries: External injuries: (i) Lacerated wound on the dorsal surface of left hand in between 2nd and 3rd metacarpal bone with inverted margin size 1/2" x 1/2" wound of entry (ii) Lacerated wound on the palmer surface of the left hand in between 2nd and 3rd metacarpal bones with everted margin size 1" x 1" (iii) Lacerated wound on the right side of the back in the middle oval with inverted margin size 3/4 x 1" cavity deep wound of entry (iv) Lacerated wound on the left supra clavicular region with everted margin size 1" x 1 1/4"- wound of exit. (v) Lacerated oval wound with inverted margin on the left side of the neck with inverted margin size 1/2" x 1/2", i. e. wound of entry. (vi) Lacerated wound on the lateral aspect of the left shoulder size 3" x 2" x muscle deep. Internal Injury: On. dissection of skull brain and mengis all were intact and pale in colour. On dissection of thorax both thoracic cavity were full of blood. Both the lungs were lacerated and pale in colour. Heart was ruptured and was pale in colour. On dissection of abdomen stomach was pale in colour containing 200 cc partly digested food. Spleen was pale in colour. Both kidneys and liver were pale in colour. Urinary bladder contains 100 cc of urine. On dissection of right side upper limb, there was a metallic foreign body resembling bullet was found on the ateromedial part of right upper part. 20. P. W.8 deposed that cause of death of all the three deceased were due to haemorrhage and shock following fire arm injuries. He deposed in para-11 that fire-arms means regular or country made rifle, gun or pistol. 21. 20. P. W.8 deposed that cause of death of all the three deceased were due to haemorrhage and shock following fire arm injuries. He deposed in para-11 that fire-arms means regular or country made rifle, gun or pistol. 21. Learned Senior Counsel, Sri Rana Pratap singh, who has appeared on behalf of the appellants, have vigorously argued that in view of non-finding of any charring or tattooing mark on the dead bodies, the story put forth by the prosecution, particularly evidence of P. Ws 1 and 2 who have claimed to be eye witnesses, come under the shadow of doubt. It is necessary to answer the query of Sri Singh. From the evidence of P. Ws 1 and 2 none can come to the conclusion that any fire-arm injury was caused on any of the three deceased from the very dose range. P. Ws 1 and 2, who are the eye witnesses to the occurrence, have never said that any firing was made from a very dose range. On this very point, Sri Kanhaiya Prasad Singh, learned Sr. Counsel appearing on behalf of the informant, submitted that if fire arm injury is caused on a body from a distance of a feet, there is no possibility of sustaining any charring or tattooing mark. Since , it is not a case of prosecution that firing was made from a very close range, the court is not convinced with the arguments advanced by Sri Rana Pratap singh, Senior Counsel , that non-finding of charging or tattooing mark on any of the dead bodies of deceased belie the evidence of p. Ws 1 and 2. We are of the view that on the ground of non-finding of charring or tattooing mark on the body of the deceased does not persuade us to disbelieve the evidence of p. Ws 1 and 2. On the contrary, the injuries found on the -dead body which were caused by fire arm and number of such injuries corroborate the prosecution story that in the said occurrence indiscriminate firing was made and due to that reason even one passerby was also killed besides the murder of Bir Kumar singh and one another innocent, who was a co-villager, namely, Nandu Chaurasiya. 22. In the present case, the Investigating officer, namely, Ram Babu Mandal has been examined as P. W.9. 22. In the present case, the Investigating officer, namely, Ram Babu Mandal has been examined as P. W.9. He disclosed that he heard rumour in the evening regarding the murder of three persons in Baghi- Muradpur badhar. After hearing the rumour , he recorded Sanha No.14 and for verification, he along with Pankaj Kumar Das, Sub inspector of Police, Officer Incharge of Sahar (not examined) along with arm-forces left the Police Station for the place of occurrence and at about 6.30 P. M. ( evening) arrived at the place of occurrence and at the place of, occurrence, he recorded the fardbeyan of anil Kumar Singh (P. W.1) in presence of two witnesses, namely, Ranjit Rai (not examined)and Rakesh Kumar Singh (P. W.2 ). He has extensively explained and described regarding the place of occurrence. He has stated that. from the place of occurrence towards eastern side, a road goes eastern side to Bantola, p. S. Ajimabad and from the place of occurrence about 20.25 yards away, there is Harkhen river, which is also known as kumhari river. He stated that Muradpur village was 200 Meter west from the place of occurrence. He disclosed that at the place of occurrence, he prepared a sketch map and inspected the place of occurrence and he did all the things at the place of occurrence in the light of Petromax and in his presence, Sri pankaj Kumar Das, Officer Incharge seized the blood-stained soil with blood from the place of occurrence and prepared a seizure list. Me also identified the signature of Officer incharge, which was marked as Ext.2/1. He also prepared dead bodies challan and sent them for conducting postmortem. P. W.9 also identified the three inquest reports which were marked as Exts.7, 7/1 and 7/2. In paragraph-7 of his deposition, P. W.9 deposed that on the next date, during the investigation, he arrest Ram Pravesh Singh and Brij Nandan Singh and rest accused persons were found absconding. In paragraph 9 of his deposition, he has stated that after getting information that appellants bhola Singh and Ashok Kumar Singh were hiding in village Kukuraha he rushed there. However, none could be arrested. In paragraph 9 of his deposition, he has stated that after getting information that appellants bhola Singh and Ashok Kumar Singh were hiding in village Kukuraha he rushed there. However, none could be arrested. He was informed by the villagers that appellant Bhola singh was functioning as Gram Sewak in behea Block, and as such, the Investigating officer (P. W.9) visited Behea Block and on enquiry he was informed by the staff of behea Block that appellant Bhola Singh was panchayat Sewak in Dodhara-Tedhara Gram panchayat and since last one week, he was not coming to office. After completing the investigation, he submitted chargesheet against four appellants and further investigation in respect of appellant,bhola singh and others was kept pending and thereafter, he was transferred from the said police Station and further investigation against appellant Bhola Singh and two others was taken up by the Sub Inspector of Police, parma Nand Birua (P. W.11 ). P. W.9, Ram babu Mandal, has also proved the sketch map in respect of place of occurrence and the same was marked as Ext.8. In his cross-examination, the defence tried to establish that the Investigating Officer had not conducted proper investigation and even he had not mentioned anything in respect of seizure of bicycle from the place of occurrence. In paragraph 18 of his cross-examination, the Investigating Officer has admitted that in the case diary, he has not mentioned regarding cycle or blood-stained cycle recovered from the place of occurrence. From the cross-examination of P. W.9 nothing has been brought on record to suggest that besides non-mentioning of recovery of cycle in the case diary there were any other infirmity in the investigation. 23. Sri Rana Pratap Singh has emphatically argued that non-mentioning of recovery of cycle from the place of occurrence in the case diary, creates serious doubt on the credibility of prosecution case as well as bona fide of evidence of P. Ws 1 and 2. Sri Singh has further argued that since the Investigating officer had not seen any bicycle at the place of occurrence whereas P. W.2 had built up a case that cycles were lying at the place of occurrence, it seriously discredit the claim of p. Ws 1 and 2 to be eye witnesses. Sri Singh has further argued that since the Investigating officer had not seen any bicycle at the place of occurrence whereas P. W.2 had built up a case that cycles were lying at the place of occurrence, it seriously discredit the claim of p. Ws 1 and 2 to be eye witnesses. It is true that the Investigating Officer has not mentioned anything regarding the cycle and subsequently one of the witnesses, i. e. P. W.2 has stated that on the next-date cycles were delivered by the villagers. It gives an impression that the investigation up to this extent can be said to be defective, but on the ground of, defective investigation, the prosecution case, which is otherwise believable and truthful cannot be demolished. Time without number the Honble Supreme Court has held that defective investigation cannot vitiate the case of the prosecution. In a case reported in 2003 air SCW 717 (Amar Singh Vs. Balbindra singh) the Honble Supreme Court has held that if the prosecution case is established by a direct evidence of eye witnesses, any failure or omission of Investigating Officer cannot render prosecution case doubtful or unworthy of believe. The Honble Supreme Court further in a case, reported in 2006 Cr. LJ, 2618 (Krishna Sinde Vs. State of Maharashtra)while considering the investigation and its defect has held that defective investigation would not deter a court from convicting an accused if court finds that dehors the defect accused can be convicted on the basis of evidence on record. 24. Accordingly, the Court is of the view that merely non-mentioning of recovery of bicycle in the case diary or non-preparing of its seizure list can hardly be termed as an omission on the part of the Investigating Officer and even in no stretch of imagination the prosecution case in the facts and circumstances and evidence, brought on the record can be doubted. 25. P. W.10 Tarkeshwar Prasad who is a formal witness, has simply proved the written report dated 23.11.1999, which is in the writing and signature of Anil Kumar Singh (P. W.1) and the same has been marked as Ext.10. On the basis of said written report,. F. I. R. vide Ajimabad p. S. Case No.35 of 1999 was formally drawn and the same has been marked as Ext.11. On the basis of said written report,. F. I. R. vide Ajimabad p. S. Case No.35 of 1999 was formally drawn and the same has been marked as Ext.11. It is necessary to mention here that P. W.1 has categorically stated that for the demand of rangdari by three of the appellants in the year 1999, said F. I. R. was registered against the appellants and repeatedly appellants were putting pressure and threatening the deceased and his family members to withdraw the case. The witness has also stated that in the said case, chargesheet was already filed. Accordingly, the reason for the present occurrence has got direct relation with the registration of the F. I. R. in the year 1999. The court can take judicial notice of the fact that during the relevant period, kidnapping and rangdari had grown up as an industry in our State. 26. P. W.11 has conducted further investigation and has submitted supplementary chargesheet against the appellant, Bhola Singh. 27. In the present case, during the trial, as usual, some of the appellants have taken the plea of alibi besides other defence and in support of their case defence had examined altogether seven defence witnesses. D. W.1 jai Ram Pal who was the Block Development officer, Ara, being a public servant appears to have come forward to save the skin of appellant Bhola Singh from the charges of the case. He deposed that at the time of occurrence, he was posted in Behea Block as block Development Officer. He further deposed that from 19.2.2001 to 3.3.2001, preparation of Panchayat Election in the said block was going on and they were very busy in the said work. In the said work, all the panchayat Sewaks were kept engaged till late night and all the works were being done in the supervision of D. W.1 as per his deposition. D. W.1 has specifically stated that on 1.3.2001 from 10.00 A. M. in the morning to 8. OO P. M. night scrutiny of nomination papers were going on. He emphatically stated that on the said date for the whole of aforesaid period, Bhola Singh remained present in the Block Office and he discharged his official duty. He had also granted a certificate to this effect, which was under his writing and signature and the same was marked as Ext. A. On perusal of Ext. He emphatically stated that on the said date for the whole of aforesaid period, Bhola Singh remained present in the Block Office and he discharged his official duty. He had also granted a certificate to this effect, which was under his writing and signature and the same was marked as Ext. A. On perusal of Ext. A, it is evident that D. W.1 had granted Certificate in favour of appellant Bhola Singh to the effect that from 19.2.2001 to 3.3.2001 in his Block Office, Panchayat Sewaks had discharged their duties in respect of panchayat Election, nomination, verification and preparation of different forms. During that period Sri Bhola Pd. Singh, Son of Late ram Ekbal Singh, Village + P. O. Bargaon, p. S. Ajimabad, District-Bhojpur used to remain in the office from 10,00 A. M, to 8.00 p. M. and discharge the relevant works in respect of Panchayat Election. Surprisingly, while being cross-examined, D. W.1 in para-4 has candidly admitted that he learnt that bhola Singh (appellant) had been made accused in a murder case. He did not take any administrative action against him, He further admitted in para-5 that in the Block, there is not even a single chit of papers from where it can be ascertained as to who had worked from which period to which period on a particular date. From the cross-examination of D. W.1, it is really surprising that as to how and under what circumstances, Sri Jai Ram Pal, who was holding a responsible post of B. D. O. , Behea, bhojpur was persuaded to issue such certificate ,i. e. Ext. A in favour of the appellant,bhola Singh, even though he was knowing well that appellant Bhola Pd. Singh was one of the accused in a murder case. Instead of taking any administrative action, d. W.1 was kind enough to prepare a certificate in favour of an accused who had committed a heinous crime. D. W.1 appears to be so courageous that initially he issued such certificate i. e. Ext. A and subsequently lie even appeared before the trial court and on oath he deposed in support of plea of alibi in respect of appellant, which in the opinion of the Court was a false deposition. D. W.1 had also brought on record the certificate, which was prepared to favour the appellant bhola Pd. Singh. A and subsequently lie even appeared before the trial court and on oath he deposed in support of plea of alibi in respect of appellant, which in the opinion of the Court was a false deposition. D. W.1 had also brought on record the certificate, which was prepared to favour the appellant bhola Pd. Singh. We are of the opinion that when the learned trial judge had already disbelieved the defence case he was also obliged to. take action while exercising jurisdiction under Sec.340 Cr. P. C. against d. W.1. Of course, while hearing the present appeal, we are not issuing any such direction but the same is only opinion of the Court. In view of the aforesaid discussions, the evidence of D. W.1 does not inspire confidence, and as such, no benefit can be given to the appellants, particularly appellant, Bhola Pd. Singh. 28. In support of appellant Bhola Pd. Singh and also with a view to corroborate the evidence of D. W.1, Ram Ayodhya Singh, who was Panchayat Sewak in Barharwa Block, has come forward as D. W.2. Similarly, he deposed that on the date and time of occurrence, Bhola Prasad Singh was present and discharging his official duty in the Block, however, in the cross-examination, he, too, admitted that there is no such paper from which it could be established that from 10.00 a. M. to 7.00 P. M. appellant Bhola Singh had discharged his duty in office. D. W.2 has further admitted in para-6 that appellant Bhola Singh was known to him since 1978-79 and both were appointed simultaneously. In para-7, he further admitted that matrimonial village of his wife is village Kukuraha and accused Bhola pd. Singh was also having agricultural land in village Kukuraha. Accordingly, on the basts of his admission as well as above discussions of the evidence of D. W.1, the evidence of D. W.2 appears to be heavily doubtful and cannot be relied upon. 29. Sri Nand Kishore Singh (D. W.3) has come forward to depose that on 1.3.2001 while he was sitting in the Post Office of Ram Pravesh singh (Appellant) where one Birendra Kumar came and informed regarding the murder of bir Kumar Singh and Nandu Panheri near harkhen river. D. W.3 further disclosed that birendra Kumar is also known as Bhuer Sah who was his co-villager. D. W.3 further disclosed that birendra Kumar is also known as Bhuer Sah who was his co-villager. In the Post Office at that very time, appellants Ram Pravesh Singh, ashok Singh and Manoj Singh were sitting. He further stated that Birendra Singh did not say as to who had committed the occurrence. Thereafter, he rushed to the place of occurrence. He further stated that Anil Kumar singh (P. W.1) was also with him either forward or backward. In Its cross-examination, D. W.2 has admitted that his maternal village is medinipur, which is in Nasirigang and his maternal house is in the house of Balram Singh. In his cross-examination, a suggestion was given that appellant Bhola Singh was married to his sister and due to that reason with a view to save his family, he made false deposition. From perusal of the examination-in-chief of d. W.3 it appears that he not only tried to save the appellant Ram Pravesh Singh but he also developed a new story that at the time of occurrence he along with Ram Pravesh Singh, ashok Kumar Singh and Manoj Singh was also sitting in the post office. The evidence of D. W.3 does not inspire any credibility in view of the evidence of P. W.1 and P. W.2, which is consistent in nature and the same has been corroborated by other evidences which have already been discussed above. Like D. W.3, d. W.4, namely, Ram Naresh Singh and D. W.5 shri Ram Singh have also tried to develop a story to support the case of alibi of appellants and as discussed above, their evidence is also not credible. 30. D. W.6 Baliram Bhagat has stated that while he was at his door in the evening on the date of occurrence, he saw that Bhuer was perturbed and running fastly. Thereafter, he asked and then Bhuer replied that three persons have been killed near the river, amongst them one was Bir Singh, second was Nandu Panheri and third was unknown person. D. W.6 further stated that on enquiry, bhuer said that he was going to inform Anil singh. He did not say about the murderer. In his cross-examination, at paragraphs, D. W.6 has admitted that he does not remember the day of occurrence, date of occurrence, month of occurrence or year of occurrence. D. W.6 further stated that on enquiry, bhuer said that he was going to inform Anil singh. He did not say about the murderer. In his cross-examination, at paragraphs, D. W.6 has admitted that he does not remember the day of occurrence, date of occurrence, month of occurrence or year of occurrence. In para 6 he categorically admitted that when he met with Bhuer, it was about 4.00p. M. (evening ). He further admitted in para-7 that from his village to Kumhari river it takes 1/2 hours if one goes on foot. In para 12 of his cross-examination, D. W.6 has further admitted that Parshuram Singh was uncle of the informant P. W.1 Anil Kumar Singh) and prior to the occurrence in between Parshuram singh and his family proceeding u/s 107 cr. P. C. was going on. From the evidence of d. W.6 , particularly paragraphs 6 and 7 referred above, it is difficult to imagine that if the occurrence had taken place at about 5.30 P. M. and from the place of occurrence, it takes 1/2 hours to reach village Bargaon ,i,e. village of D. W.6 how Bhuer informed him regarding the occurrence at about 4.00 P. M. The ill-will is also evident from the fact that in between family of D. W.6 and the informant, criminal proceeding under Sec.107 cr. P. C. was going on, and as such, nursing his grudge D. W.1 appears to have come forward to depose falsely in favour of the appellants. 31. D. W.7 is Birendra Pd. Gupta who has deposed that on 1.3.2001, he was going along with Nandu Chaurasiya (deceased) and while they reached near Harkhen river, he developed natural call and then he asked nandu Chaurasiya that he will come later on and after attending natural call, while he was in midst of washing, he heard sound of firing and thereafter he fled away. He did not see any of the assailants. He ran to his village and thereafter he narrated about the occurrence to his inmates. He also stated that his statement was recorded by the Police. In cross-examination, he admitted that at the time of occurrence, he was downward while the occurrence had taken place at 10 ft raised place from the river and due to that reason he could not see the assailants. He also stated that his statement was recorded by the Police. In cross-examination, he admitted that at the time of occurrence, he was downward while the occurrence had taken place at 10 ft raised place from the river and due to that reason he could not see the assailants. From the evidence of D. W.7, it appears that the appellants are not in a position to gather any favour from the evidence of D. W.7, and as such, the evidence of D. W.7 has got no relevant in support of the appellants defence. 32. D. W.8 Madan Singh has stated that in the said case occurrence took place on 1.3.2001 at about 4.30 P. M. He further stated that in his village market, Bhuer Sah came at 5.00 P. M. and informed that Bir Singh and nandu Chaurasiya and one unknown person had been killed. After noticing the said information, he rushed to the place of occurrence along with Anil Singh (P. W.1), rakesh Kumar Singh (P. W.2) and many others. He stated that Anil Singh, who is the informant, was with him while they reached the place of occurrence. In his cross-examination at para.4, he admitted that he never discussed with any one about the information, which was given by Bhawar Sah. In his cross-examination, at paragraph 8, he has admitted that he was an accused in sessions Trial No.128 of 1997 for the offence u/s 307 I. P. G. which was registered on the information of one Shailu Chaoudhary. However he denied the suggestion that shailu Choudhary was labourer of Anil Singh (P. W.1 ). He also denied the suggestion that accused were his relative. The story set forth by D. W.8 also appears to be not believable particularly due to the reason that there is consistent evidence of P. W.1 and P. W.2, which have been corroborated by other evidences and on the basis of discussions made herein above, the evidence of P. Ws 1 and 2 cannot be discarded, and as such, the evidence of D. W.8 appears to be unworthy and doubtful and the same has been created only with a view to create false claim of the appellants to show their innocence. 33. 33. In view of the evidences discussed above, it is evident that P. Ws.1 and 2 are the real eye witnesses, who had seen the occurrence and identified the appellants as assailants, and as such, the evidence of P. Ws 1 and 2 are trustworthy and cannot be doubted. Further argument was advanced on behalf of the appellants that the F. I. R. was prepared belately inasmuch as the inquest reports bear the time of its preparation between 7.15 p. M. to 7.45 P. M. whereas the F. I. R. was lodged at 11.30 P. M. on the same night. P. W.9 was pointedly cross-examined by the defence on the point that how before the registration of the F. I. R. , which was done at 11.30 P. M. on 1.3.2001in the inquest reports, which were prepared in between 7.15 P. M. to 7.45 P. M. , F. I. R. number was described ? answering to this question, D. W.9 has categorically stated that from the place of. occurrence while preparing the inquest reports he got information through wireless set from the police Station as to which number was going to be assigned in the present case, and as such, he recorded the case number in the inquest reports, which were prepared in between 7.15 P. M. to 7.45 P. M. on the date of occurrence. This answer of P. W.9 went unchallenged. It was not got contradicted by the defence, and as such, the Court has got no option but to rely on the evidence of p. W.9 on the point of mentioning the case number in the inquest reports even though f. I. R. was registered later. 34. Sri Rana Pratap Singh has also emphatically argued that though the F. I. R. was registered on 1.3.2001 at 11.30 P. M. the same was received/seen by the C. J. M. on 3.3.2001. Taking the plea of delayed receipt of the F. I. R. in the Court Sri Singh developed his argument that the F. I. R. was concocted and no one had seen the occurrence. After going through the evidence of P. Ws 1 and 2, there is no doubt to hold that the fardbeyan was recorded at the place of occurrence itself. It has been corroborated by the investigating Officer who is P. W.9 as well other evidence. After going through the evidence of P. Ws 1 and 2, there is no doubt to hold that the fardbeyan was recorded at the place of occurrence itself. It has been corroborated by the investigating Officer who is P. W.9 as well other evidence. In the present case, it is not in dispute that immediately after recording fardbeyan the police prepared inquest report at the place of occurrence, seized blood-stained soil from the place of occurrence and also prepared seizure list in respect of recovery of empty cartridges from the place of occurrence and at the place of occurrence itself, statements of witnesses were recorded. So, it seems reasonable that immediately after the occurrence, the police started investigation and at 11.30 P. M. On the same date F. I. R. was formally drawn up and on the next date, i. e. on 2.3.2001, the f. I. R. was shown to be dispatched from the police Station and the same was received on the next date i. e.3.3.2001 in the court of c. J. M. It is also very much relevant to mention that on three dead bodies post-mortem was held in the morning on 2.3.2001. So, on the basis of time and date of events mentioned herein above the Court is of the view that delay in receipt of the F. I. R. in the Court was not such a delay, which creates a doubt on the prosecution case nor it can be viewed that a false case was concocted, particularly in view of the evidences adduced by the prosecution. Even for the time being if it is assumed that some delay has occurred in receipt of the F. I. R. in the court below, we are of the view that merely delay in receipt of f. I. R. in the court does not vitiate the prosecution case, if the prosecution case is otherwise established. Sri Rana Pratap Singh, senior Counsel emphasizing his arguments that delayed receipt of F. I. R. frustrates the prosecution case, has referred the case of thanedar Singh, reported in (2002) 1 SCC, 487 (Thanedar Singh Vs. State of Madhya pradesh) and pointedly referred paragraph 5.2. of the said Judgment. For the sake brevity, it is apt to quote paragraph 5.2. of the said Judgment:- "5.2. State of Madhya pradesh) and pointedly referred paragraph 5.2. of the said Judgment. For the sake brevity, it is apt to quote paragraph 5.2. of the said Judgment:- "5.2. P. W.6 did not reveal to his kith and kin and the villagers who came to the place of occurrence in the morning about the names of any of the accused, however, he deposed that the names of the accused persons were mentioned in Jagjit, Baimukund and Maharaj Singh, but, they were not examined. As seen from the cross-examination at para 24, he did not even disclose the name of the alleged assailant to his son Banari. Had he identified the accused, who were known to him, he would have in the normal course disclosed the names at least to his close relations. This fact should be viewed in the context of the defence version that the F. I. R. was not recorded at the time and date it was purportedly recorded. Complaint was supposed to have been lodged by P. W.8 at 9 a. m. on the morning following the night of occurrence. The defence produced a certified copy of the FIR received by the Court of the First Class judicial Magistrate, Arriba, in which a note written by the clerk of the court showed that it was received on 21.5.1982. That document is Ext. D-4. The evidence of the date of sending the copy of F. I. R. to the Magistrates court was not adduced by the prosecution in spite of giving more than one opportunity , as borne out by the endorsements on the order sheets dated 28.11.1984 and 7.12.1984. On 28.11.1984, it was noted that adverse inference will be drawn if the record was not produced. Yet, the prosecution failed to adduce proof. A specific suggestion was put to P. W.10 (SHO, Sihonia P. S.) that fir was prepared 2 or 3 days after the occurrence which, of course, was denied. PW10. admitted that no attempt was made to apprehend the accused on 19th and 20th May. It is significant to note that the crime number/fir number is not to be found in the inquest report. (P-6), site Plan (P-5) or P-8 which is a requisition sent to the hospital for postmortem. No reference whatsoever is made in Ext. PW10. admitted that no attempt was made to apprehend the accused on 19th and 20th May. It is significant to note that the crime number/fir number is not to be found in the inquest report. (P-6), site Plan (P-5) or P-8 which is a requisition sent to the hospital for postmortem. No reference whatsoever is made in Ext. P-6 about the information, if any, furnished by PW8 or PW6- All this would support the defence version that FIR (P-10) in which the names of the accused were mentioned would have probably come into existence much later. In this context it is apposite to refer to the decision of this Court in meharaj Singh V. State of U. P. There also the question whether FIR was ante-timed to rope in the accused after some deliberations or to suit the investigation came up for consideration. Dr. A. S. Anand, J. (as His Lordship then was) speaking for the Bench observed thus: (SCCpp 195-96,paral2)"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence let at the trial. The object of insisting upon prompt lodging of the FIR is to obtain. the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an after thought. On account of delay, the FIR not only get bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the focal Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr. P. C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicate of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodge FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by pw.8" Earlier, the fact that the number of FIR or crime number was not found in the inquest report or in the requisition for the post-mortem was adversely commented, upon by the learned judges, The fact situation is more or less the same here. We do not think that there is anything in the decision of this Court in Shiv Ram V State of U. P. which goes against the legal position laid down in Meharaj Singh case. We do not think that there is anything in the decision of this Court in Shiv Ram V State of U. P. which goes against the legal position laid down in Meharaj Singh case. No broad proposition can be said to have been enunciated in that later case that inordinate and unexplained delay in sending the F. I. R. to the Magistrate would be an immaterial factor liable to be ignored altogether. " There is no dispute in respect of proposition of law laid down by Honble Supreme Court on this point. However, most important thing while considering the delayed receipt of F. I. R. is to see as to whether the prosecution has established a case that fardbeyan was recorded with promptitude and thereafter investigation, such as preparation of inquest report, seizure list, recording of statements, have commenced with immediate effect or not and if the prosecution is in a positron to establish the fact that after the occurrence fardbeyan was recorded immediately and thereafter investigation had commenced; then delayed receipt of the F. I. R. in the court losses its significance. In Pala Singhs case, reported in AIR 1972 SC 2679 (Pala Singh and Anr Vs. State of Punjab), the Honble Supreme court while considering the delayed receipt of F. I. R, has held that delay in receipt, of occurrence report by the magistrate by itself does not make the investigation tainted. Paragraph nos.3 and 7 of the said Judgment, if it is quoted would suffice the purpose and same are as follows: "3. The learned additional Sessions Judge acquitted all the accused persons holding that the assistant Sub Inspector, Kashmiri Lal, whop had investigated the offence had not performed his duties in a fair and straightforward manner and that the prosecution evidence was not trustworthy so as to bring home the offence to the accused beyond the possibility of a reasonable doubt. The trial court expressed the view that the first informant report had been recorded after great delay and after there had been consultation with the interested persons. The special report had also not reached the duty magistrate till after the expiry of 8 or 9 hours though the duty magistrate lives in the same town. The inquest report prepared by A. S. L kashmiri Lal had also been tampered with inasmuch as there were interpolations in the statements of at least two witnesses recorded herein. The special report had also not reached the duty magistrate till after the expiry of 8 or 9 hours though the duty magistrate lives in the same town. The inquest report prepared by A. S. L kashmiri Lal had also been tampered with inasmuch as there were interpolations in the statements of at least two witnesses recorded herein. Gokal Chand (P. W.3) was also disbelieved by the trial court and so was Trilochan singh (P. W.9 ). The recovery of bloodstained sword at the instant of Trilok singh, appellant, was also discarded as unreliable. The site plan prepared by a. S. I. Kashmiri Lal was also held to have been prepared not, as it purported to be, before 9.45 a. m. but long thereafter when he had decided to implicate hazara Singh also as a party to the conspiracy under S.120b ,i. P. C. As observed earlier, all the accused were acquitted by the learned Additional sessions Judge.7. Shri Kohii strongly criticized the fact that the occurrence report contemplated by S.157 Cr. P. C. was sent to the magistrate concerned very late. Indeed, this challenge, like the argument of interpolation and belated dispatch of the inquest report, was developed for the purpose of showing that the investigation was not just, fair and forthright and, therefore, the prosecution case must be looked at with great suspicion. This argument is also unacceptable. Mo doubt, the report reached the magistrate at about 6 p. m. S.157, Cr. P. C. requires such report to be sent forthwith by the police office concerned to a Magistrate empowered to take cognizance of such offence. This is really designed to keep the magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under S.159. But when we find in this case that the F. I. R. was actually recorded without delay and the investigation started on the basis of that F. I. R. and there is no other infirmity brought to our notice, then, however improper or objectionable the delayed, receipt of the report by the magistrate concerned if cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. It is not the appellants case that they have been prejudiced by this delay. " 35. It is not the appellants case that they have been prejudiced by this delay. " 35. On this very point, it is also relevant to refer a Judgment of the Honble Supreme court, reported in 2007 AIR SCW 684 (Sarvesh Narayan Shukla Vs. Durga singh and Ors.) In the said case also, the f. I. R. was received much after the lapse of several days i. e. on 4.4.2009 the incident had taken place, however, special report by the Magistrate was received on 8.4.2009. The Honble Court was of the view that since after the occurrence, police had taken immediate steps and in that way inquest report was prepared and dead body was sent for postmortem immediately, and as such, the delayed receipt of the F. I. R. was considered by the Honble Supreme Court as no significance. In the case in hand, there is specific case of prosecution that the occurrence was witnessed by P. Ws 1 and 2 who were coming along with deceased Bir kumar Singh, immediately thereafter ,i. e. within an hour the police arrived at the place of occurrence and recorded the fardbeyan of the occurrence at 6.30 P. M. , in between 7.15 P. M. and 7.45 P. M. inquest reports of all the three dead bodies were prepared, F. I. R. was drawn up at 11.30 P. M. and at about 10.00 the dead bodies were sent for conducting postmortem examination and thereafter postmortem was held in the morning on 2.3.2001, and as such, the argument of learned counsel questioning the veracity of the fardbeyan or alleging antedating of the F,i. R. appears to be not sustainable and is fit to be rejected. 36. So far as the arguments advanced on behalf of the appellants on the point that no charring/tattooing was found on the injuries of any of the deceased creates doubt on the claim of evidence of P. Ws 1 and 2 is concerned, we are of the view that in the present case, there is no inconsistency between ocular or medical evidence. It is consistent case of prosecution that the deceased were fired not from very close range. In absence of specific case of firing by close range there is no possibility of having charring/tattooing marks on the injuries, and as such, the arguments of the learned counsel on this point also fails. 37. Leamed Senior Counsel, Mr. It is consistent case of prosecution that the deceased were fired not from very close range. In absence of specific case of firing by close range there is no possibility of having charring/tattooing marks on the injuries, and as such, the arguments of the learned counsel on this point also fails. 37. Leamed Senior Counsel, Mr. Rana Pratap singh has further argued that in support of prosecution case, except the official witnesses, all witnesses are directly or indirectly related to each other. It was argued that p. W.3 is own brother of the informant (P. W.1) and deceased. Similarly, P. W.6 is brother of P. W.2 who is cousin of the informant and P. W.3. Accordingly, learned senior Counsel emphasized that the witnesses are relative and interested, and as such, their evidence may not be termed as truthful and reliable. We may indicate that law is settled on the point that the evidence of a relative cannot be discarded if the same is inspiring confidence. The evidence of P. Ws 1 and 2, as discussed above, do not creat any doubt in the mind of the Court that the same does inspire confidence and the same cannot be ignored. Learned Senior Counsel, Sri Rana pratap Singh has argued that in any event evidence of only one witness, i. e. P. W.1 can be looked into with suspicion and on the basis of P. W.1, the conviction of all the appellant appears to be not sustainable. While replying this question Sri Kanhaiya Prasad Singh, learned senior Counsel for the informant, invited our attention to the provisions contained in section 134 of the Evidence Act and to corroborate this provision, the learned senior counsel also referred to a Judgment of Honble supreme Court, reported in AIR 1983 SC 126 (Maqsudan Vs. State of Uttar Pradesh ). At this juncture, it is necessary to quote the provision contained in Sec.134 of the evidence Act, 1872, which is as follows: "134. No particular number of witnesses shall in any case be required for the proof of any fact. " 38. The Honble Supreme Court has categorically held that in a case, number of witnesses hardly matter. It is quality of evidence, which is to be looked into. No particular number of witnesses shall in any case be required for the proof of any fact. " 38. The Honble Supreme Court has categorically held that in a case, number of witnesses hardly matter. It is quality of evidence, which is to be looked into. In view of the statutory provision of the Evidence Act as well as law laid down by the Honble Supreme court, there is not doubt in the mind of the court that evidence of P. Ws 1 and 2 in the facts and circumstances of the present case can be ignored. 39. The plea taken on behalf of the appellants regarding non-examination of any witness from the village Muradpur is simply to be noticed and rejected. It is specific case of prosecution that due to non-withdrawal or compromise of earlier case, i. e. Ajimabad P. S. Case No.36 of 1999, the appellants had committed the present crime. If the conducts of appellants are examined on this point of view one can easily come to the conclusion that why witnesses from Muradpur village had not dared to depose against the appellants or in support of prosecution case. In view of the facts and circumstances as mentioned herein above, it is evident that the prosecution has proved its case beyond all reasonable doubt and the learned trial judge while convicting and sentencing the appellants has not committed any error or mistake, and as such, both the appeals fail and the same are dismissed. Accordingly, both the appeals stand rejected.