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2010 DIGILAW 2523 (ALL)

Parsan v. State Of U. P.

2010-08-18

ABDUL MATEEN, Y.K.SANGAL

body2010
Yogendra Kumar Sangal 1. This criminal appeal is at the instance of four accused namely Parsan, Bispat, Jhurrey and Mangrey who stand convicted and sentenced for the offence under Section 302/34 and 394 IPC for life imprisonment and seven years rigorous imprisonment respectively in Session Trial No. 449 of 1980, P.S. Umribegumganj, District Gonda vide judgment and order dated 15.10.1981 and 16.10.1981 passed by the IInd Additional Session Judge, Gonda. Both the sentences are to run concurrently. 2. Incident narrated in the FIR is that on 07.12.1977 at 2.00 P.M. wives of accused Parsan and Jhurrey (real brothers) came at the house of Ramhet/complainant situated at Village Ghadi Manjhar, P.S. Umribegumganj, District Gonda and made complaint that his "calf" caused damage in their Ikh-crop field and they hurled abuses. Complainant stated that calf was of his brother and his father Paramhans also scolded them. On this they returned with a threat that they will send their husband to teach lesson to them. Shortly, thereafter all the four accused armed with lathis came there and hurled abuses and threatened them. Complainant and his father under their fear hid themselves and they did not come before them. They all left the place threatening them that they will chop the tongue of the Paramhans and kill him as and when he will meet them. In the same day mid-night i.e. on 07/08.12.1977, when Paramhans was sleeping in his house, Marah/Bathak all the four accused entered in the house having firearm, sickle, lathis, etc., with them. Three out of them i.e. Jhurrey, Mangrey and Bispat caught hold and pressed Paramhans and Parsan fired shot on him with country made pistol and Bispat given sickle below on his tongue. As usual lantern was glowing in Bathak as Paramhans was suffering with poor vision. On hearing the hue and cry of Paramhans and noise of shot fired members of family awoke. Complainant ignited the "Khari" as such, there was sufficient light and they challenged the assailants. Other villagers and neighbourers also assembled there. Accused persons threatened them on the point of pistol and other arms and they looted ornaments from the body of the sister of the informant namely Shivraji who also was there and saw the occurrence. Accused persons when were leaving the place, they were chased but they succeeded in escaping from there after entering in Arahar Crop field. Accused persons threatened them on the point of pistol and other arms and they looted ornaments from the body of the sister of the informant namely Shivraji who also was there and saw the occurrence. Accused persons when were leaving the place, they were chased but they succeeded in escaping from there after entering in Arahar Crop field. Thereafter the family members found victim Paramhans in dead position having firearm injuries on right side of his chest to shoulder and on tongue also. FIR was lodged at about 9.30 A.M. on 08.12.1977 at P.S. Umari Begumganj scribed by Raghunath on the dictation of the complainant/informant. On the same case was registered against the named accused persons for the offence under Sections 302 and 394 IPC and entry was made in the G.D. Investigation of the case was taken up by S.H.O. Bharat Singh. He recorded the statement of complainant and his brother at police station and then proceeded to place of occurrence. After seeing the dead body there, he prepared the inquest report, photo lash, challan lash and letter to C.M.O. for the purpose of post-mortem of the dead body and the same was sealed and sent for post-mortem. Thereafter, he prepared the site plan of place of occurrence and collected blood stained and "Sada Mitti" sample of Ash of the "Khari" and also collected pellets spread there and sealed them and also prepared the memo's of the same. He then recorded the statement of the rest prosecution witnesses and made efforts for the search and arrest of the accused persons, but they were not available. Later on, he came to know that they have surrendered themselves in the Court of Magistrate. Investigating Officer also collected post-mortem report of the body of Paramhans where doctor had given details of injuries and condition of body noticed by him and opined that death was caused due to shock and hemorrhage as a result of ante-mortem injuries. After concluding the investigation, he submitted charge-sheet in the matter against the accused persons. After submission of the charge-sheet, learned Magistrate has taken cognizance in the matter and seeing the case under Section 302 IPC committed the same to the Court of Session for the trial of the accused persons. After concluding the investigation, he submitted charge-sheet in the matter against the accused persons. After submission of the charge-sheet, learned Magistrate has taken cognizance in the matter and seeing the case under Section 302 IPC committed the same to the Court of Session for the trial of the accused persons. In the Court of Session, all the four accused were charged for the offence under Section 302/34 and 394 IPC but they pleaded not guilty and claimed their trial. The prosecution has produced complaint Ramhet as PW-1; Rammurat his brother as PW-3; Smt. Shivraji his sister as PW-4; Ramsamuj as PW-5 showing them eye-witnesses of the occurrence; Dr. H.C. Srivastava who conducted the post-mortem of dead body as PW-2; Saddique Ali Sweeper a witness of post-mortem of the dead body as PW-6 and investigating officer Bharat Singh as PW-7. Written FIR Exhibit-Ka-1; memo of lantern Exhibit-Ka-2; post-mortem report Exhibit-Ka-3; inquest report Exhibit-Ka-4; photo lash, challan lash Exhibit Ka-5 and Exhibit-Ka-6; letter to C.M.O. Exhibit-Ka-7; site plan Exhibit-Ka-8; Fard of blood stained and Sada Mitti, Ash, pellets Exhibits-Ka-9 to Exhibit-Ka-11; chik report and entry of G.D. about registration of the case Exhibit-Ka-12 and Exhibit-Ka-13 and copy of statement under Section 161 CrPC of Sadique Ali Exhibit-Ka-14 were also produced and proved. Blood stained dhoti and Salooka and blood stain and simple mitti Exhibit-1 to 4 were also produced. In their statement under Section 313 CrPC, accused have denied the correctness of the prosecution case and evidence. Accused Jhurrey and Mangrey stated that Bispat and Parsan are their brothers respectively. Bispat stated that his nephew Bhagwati had kidnapped the daughter of Paramhans five months before the occurrence. Parsan stated that Ramhet and Paramhans used to do Batai Kheti with Raghunath, although he was in possession of the same, they want to get it sold, but he has not permitted them to do so. Only due to this reason, this false FIR was lodged. No evidence in defence either oral or documentary was produced on their behalf. Heard Sri I.B. Singh learned Senior Counsel for the appellants and Sri Rajesh Kumar Diwedi Additional Government Advocate and perused the record. From record, it reveals that it is not disputed to the accused persons that in the night of 07/08.12.1977, father of the informant, namely Paramhans was murdered and he received injuries by use of firearm. Post-mortem report Exhibit-Ka-3 along with statement of Dr. From record, it reveals that it is not disputed to the accused persons that in the night of 07/08.12.1977, father of the informant, namely Paramhans was murdered and he received injuries by use of firearm. Post-mortem report Exhibit-Ka-3 along with statement of Dr. PW-2 who conducted the post-mortem in support of this case of the prosecution is available on the record showing that cause of death of Paramhans was ante-mortem firearm injuries received by him found by the doctor on his body. Injuries are detailed in the report. It was suggested on behalf of the accused to PW-1 informant in his cross-examination that some unknown person has committed this murder and they have been falsely implicated in this case which was denied by him in his on oath statement. Place where murder of Paramhans has taken place is residential house of the informant/complainant. It is also established and not disputed on behalf of the accused which is clear from the record. I.O. has collected blood stained Mitti from that place. He has also collected pallets 14 in numbers from there. I.O. had also shown the same place of the occurrence in the site plan from where he also seized the dead body of the deceased and prepared the inquest report. Moreover, it is also not the case of the accused persons that this murder has taken place elsewhere and dead body was placed there later on. 4. As per prosecution case, injuries found on the body of the deceased resulting in his death were inflicted by the accused Parsan by firing shot with country made pistol when he along with other accused entered into the house of the complainant in the mid-night of 07/08.12.1977 (having firearm and deadly weapons like sickle) under a common intention to commit his murder and Bispat had also given below of sickle on his tongue and at that time rest three accused caught hold and pressed Paramhans for the purpose of chopping his tongue. As per prosecution case, lantern was glowing in the Bathak at the time of the occurrence. The same was hanged there as usual because Paramhans was suffering from poor vision and to help him if he awoke in the night. I.O. has also prepared the memo of this lantern Exhibit-Ka-2 and he has also noticed blackness at the place in the bathak where this lantern was hanging. The same was hanged there as usual because Paramhans was suffering from poor vision and to help him if he awoke in the night. I.O. has also prepared the memo of this lantern Exhibit-Ka-2 and he has also noticed blackness at the place in the bathak where this lantern was hanging. As per prosecution case when complainant saw the accused persons there he also ignited the "khari", showing that there was sufficient light on the spot at the time of the occurrence in which assailants could be identified. I.O. has also collected the sample of Ash of Khari next day at the time of his inspection and prepared the memo of the same which is Exhibit-Ka-10 on the record. He has also shown the place in the site plan from where he had collected the "Ash" of "Khari". When he was inquired by the counsel for the accused in cross-examination whether he found the leaves of trees nearby the place of the occurrence were effected due to fire, he denied the same and explained that trees were at distance so these were not effected by this ignition of "Khari". 5. On the other hand, the case of the accused persons was that they have been falsely implicated in this case and it was suggested to the prosecution witness on their behalf that some unknown person has committed this murder in dark night. For what other reasons Paramhans was murdered and on whose pointing, they kept mum (silence) and no documentary or oral evidence was adduced on their behalf in this regard. It is the case of the accused persons that due to old enmity both the parties were at enmical terms so they have been falsely implicated in the matter. It is established law that old enmity is like a double edged weapon which cuts both ways. If it can be said that due to this enmity, accused persons have been falsely implicated in this case, it also cannot be ruled out that due to this cause, they have committed this offence. The Court has to determine the direction in which enmities set up were more likely to operate. Moreover, it is also established law that when there is direct evidence of acceptable nature regarding the commission of offence the question of motive cannot loom large in the mind of Court. The Court has to determine the direction in which enmities set up were more likely to operate. Moreover, it is also established law that when there is direct evidence of acceptable nature regarding the commission of offence the question of motive cannot loom large in the mind of Court. Moreover, motive of accused persons to commit this incident is detailed in the FIR and also given by PW-1 Ramhet in his on oath statement. Wives of two accused came at the house of the complainant at 2.00 P.M. on 07.12.1977 and made a complaint that their calf had caused damage in their Ikh crop. Complainant had denied this and his father Paramhans had scolded them and also said to go away from there. Feeling annoyed with this saying of Paramhans, both the ladies left the place saying that they will send their husband to teach the lesson to him and they will get chopped his tongue. Immediately thereafter all the four accused came at the door of the informant and they badly abused and threatened them. Due to their fear, complainant and his father hid themselves in the house. Accused persons left the place with the threat that they will kill Paramhans and chop his tongue as and when he will meet them and in the night, they have committed this offence. What is the unnatural and improbable in case of the prosecution is not explained on behalf of the accused persons. No such occurrence has taken in the day to say so neither any accused dared to state as such by examining himself with the permission of the court under Section 315 CrPC nor they have examined any lady of the house to rebut the case of the prosecution to the reasons best known to the accused. There is no reason to disbelieve this case of the prosecution which gives cause to commit the offence to the accused persons in the night as per prosecution case. Learned counsel for the accused appellant argued that all the witnesses examined by prosecution are related with each other and also with the deceased. No independent witness was examined, although their presence was claimed by the prosecution. Relationship of witnesses examined with the deceased and interse not denied. It is established law that ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person. No independent witness was examined, although their presence was claimed by the prosecution. Relationship of witnesses examined with the deceased and interse not denied. It is established law that ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person. There are four eye-witnesses in the present case examined on behalf of the prosecution. No doubt PW-1 and PW-3 are sons and PW-4 is the daughter of deceased but their presence on the spot at the time of occurrence cannot be doubted. They are natural witnesses. PW-5 Ramsamujh is also stated as near relative of the deceased and resident of other village. As per defence case, he was chance witness. This witness had given cause of his presence on the spot in his on oath statement that his village situate across the river and he went to the house of the informant and requested him to get across the river by boat but Ramhet suggested him to stay with him in the night as it will not be proper to cross the river in the night and he will drop him in the early morning to the other bank of the river. He is also witness of the inquest proceeding done by the investigating officer as his signatures are there on the inquest report. He has simply stated in his on oath statement what he actually saw. He simply corroborated the presence of the accused persons on the spot having arm in their hand and also stated that Paramhans was lying there in dead position having firearm injuries on his body. He has no grudge against the accused. No un-naturality, improbability and material contradiction in the statement of prosecution witnesses was pointed out to disbelieve their on oath statement. In Deshaji vs. State, reported in 1988 SCC (Criminal) 879, Hon'ble Apex Court held that testimony of an eye-witness does not became unreliable merely because he is related to the deceased. It was further argued on behalf the accused that these witnesses were very nearly related with the deceased but none of them made any attempt to save the deceased from the clutches of the accuses persons, when three of them had caught hold of him and Bispat was trying to chop his tongue and the accused 'Parsan' has fired shot to kill him. Their presence become doubtful in the facts and circumstances of the case. It is in the evidence that accused were having deadly weapons in their hand. Already they have committed murder of family member of these witnesses. It is also there in the statement of the witnesses that the accused persons on the point of pistol and other weapons were threatening them not to interfere in their work. Moreover in Rampratap vs. State reported in AIR 1983 Supreme Court 680, the Hon'ble Apex Court has laid down as follows : "every person who witness a murder reacts in his own way. Some are stunned become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Other run away to keep themselves away from the spot as possible. Yet other rush to rescue of the victim, even going to the extent of counter attacking the assailants. Everyone reacts in his own special way, it will not be proper to discard his evidence on the ground that he had not reacted in a particular way". It is also held by the Court that evidence of a witness cannot be viewed with suspicion merely on the ground that he is a chance witness. In another case 1983 SCC (Criminal) 590 State vs. Nagin Bhai, the Hon'ble Apex Court held that mere fact the witnesses are interested would not itself be sufficient to discard their testimony straightway unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. From the above, it is clear that mere relationship of the witnesses with the deceased will not come in the way and rightly held by the trial court while convicting the accused persons for the charges leveled against them. It was further argued on their behalf that presence of independent witnesses at the time of occurrence is claimed on behalf of the prosecution but for the reasons best known to the prosecution none of them was examined. In 1988 Cr.L.J. 848 Apaa Bhai vs. State, the Hon'ble Apex Court had laid down as follows:- "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the Bus Stand. There must have been several of such witnesses. In 1988 Cr.L.J. 848 Apaa Bhai vs. State, the Hon'ble Apex Court had laid down as follows:- "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the Bus Stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. 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. It was further held that the witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy". Some immaterial contradiction and discrepancies in the statement of the prosecution witnesses and also in case were pointed out at the time of argument by the learned counsel for the accused persons specially saying that what arms accused persons were having at the time of the occurrence, there is contradiction in the statement on this point. Certain contradictions in their statement with their earlier statement under Section 161 CrPC were also pointed out. The statement of the witnesses were recorded after lapse of a time of more than three years, it is clear from the record. Some discrepancies and contradiction, therefore, bound to occur and if these are not there, the witnesses could be categorized as tutored witnesses. Inconsistencies, exaggeration and embellishment and also minor contradictions are immaterial and could be ignored as they do not come to the root of the matter and does not effect the veracity and broad feature of the prosecution story. Some discrepancies and contradiction, therefore, bound to occur and if these are not there, the witnesses could be categorized as tutored witnesses. Inconsistencies, exaggeration and embellishment and also minor contradictions are immaterial and could be ignored as they do not come to the root of the matter and does not effect the veracity and broad feature of the prosecution story. Another argument raised by the learned counsel for the accused persons was that since very beginning i.e. from the FIR case of the prosecution is that accused persons came in the night at the house of the informant with an intention to chop the tongue of Paramhans as he scolded their ladies by using filthy language. The statement of witnesses under Section 161 CrPC were also on the same line. Moreover in inquest report also, it is mentioned that tongue of Paramhans was chopped and his mouth was full of blood, but in post-mortem report, Doctor has specifically mentioned that he did not find any injury on the tongue of the deceased and the same was not chopped. Learned counsel for the accused-persons pressed that this is material contradiction in the medical evidence and ocular evidence which goes to the root of the case and create doubt on the veracity of the prosecution case. In his oath statement, PW-2 Dr. Srivastava conceded that he saw blood in the mouth of the deceased at the time when he had conducted the post-mortem, but this fact is not there in report Exhibit-Ka-3. It is correct that in the post-mortem report, he had specifically mentioned that there was no injury on the tongue of the deceased. Learned AGA argued that there is no column in the form on which the post-mortem report is prepared to mention specifically whether there was injury on the tongue of the deceased or not. It is also not clear from the statement of the doctor why and under whose direction, he had specially seen the tongue of the deceased and mentioned in the report that there was no injury on the tongue of the deceased. Learned AGA argued that possibility cannot be ruled out that only on the saying and for the help of the accused persons, this was done by the doctor which was not correct. Learned AGA argued that possibility cannot be ruled out that only on the saying and for the help of the accused persons, this was done by the doctor which was not correct. It was further argued on behalf of the accused persons that from the perusal of post-mortem report and other evidence, it reveals that earlier case of the prosecution was that tongue was severed and it was not in the mouth and was found nearby the dead body. Learned counsel for the accused appellant has drawn the attention of the Court on the on oath statement of PW-1 Ramhet in typed copy of statement in paper-book where in Para No. 3 it was typed as below :- "Mooh Mein Khoon Bhara Tha, Aar Gir Raha Tha. Jhibh Katkar Alag Padi Thi. Us-se Khoon Nikal Raha Tha." But when correctness of these facts were verified from the original statement of the witness in the file, the same was found as follows:- "Mooh Mein Khoon Bhara Tha, Aur Gir Raha Tha. Jhibh Katkar Alag Nahi Hui Thi. Us-se Khoon Nikal Raha Tha." This shows that paper-book was not correctly prepared so this confusion arose. There is no such case of the prosecution either in the FIR or in inquest report and also in the on oath statement of any witness that the tongue was severed and it was lying near dead body of the deceased. The simple case is that there was below of "hansia" by Bispat on the tongue of the victim. The inquest report was prepared by a Government servant (who is also investigating officer of the case) in discharge of his official duty. It is also expected from the investigating officer as held by the Hon'ble Apex Court in 1977 Cr.L.J. 642 that he will indicate the injuries found by him on the body of the deceased while preparing the inquest report. Not only the investigating officer had satisfied him that there was cut on the tongue of the deceased, Pancha's have also satisfied themselves with this which is clear from the inquest report. Not only the investigating officer had satisfied him that there was cut on the tongue of the deceased, Pancha's have also satisfied themselves with this which is clear from the inquest report. It is correct that in post-mortem report, Doctor has mentioned that there was no injury on the tongue of the deceased but ocular evidence is otherwise which is clear from the record and this ocular evidence finds corroboration with the facts mentioned by the investigating officer in the inquest report and also in photo lash. It is established law as held by the Hon'ble Apex Court in Solanki Chiman Bhai vs. State reported in AIR 1983 SC 484 that inconsistencies between the testimony of eye-witnesses and medical evidence is not ground to discard testimony of eye-witnesses. From the statement of the doctor itself, it reveals that he himself admitted that blood was oozing from the mouth of the deceased and he failed to note this fact in the post-mortem report. Learned AGA argued that this statement of the doctor itself shows that he has not prepared the inquest report in all consciousness. PW-2 Doctor had tried to explain the oozing of blood from mouth by saying that it may be result of injury in lungs of the deceased. It is not believable that due to injuries in the lungs if bloods comes out, it will ooze from the mouth. This all shows that statement of doctor PW-2 is not acceptable upto this extent. There appears no contradiction in ocular evidence and medical evidence in the facts and circumstances of the case and if at all for the sake of argument, it is taken even then the ocular evidence will prevail in the light of law laid down by the Apex Court. Next challenge thrown by the learned counsel for the accused-appellants on prosecution case that there is inordinate delay in lodging the FIR and important facts related to the occurrence are not given in the FIR. It is established law that it is not expected that FIR should contain the minutes detail of events. It is not supposed to be an encyclopedia of the entire events but if the essential material facts are disclosed in it that is sufficient. It is also the expectation of the law that FIR should be lodged at earliest opportunity. It is established law that it is not expected that FIR should contain the minutes detail of events. It is not supposed to be an encyclopedia of the entire events but if the essential material facts are disclosed in it that is sufficient. It is also the expectation of the law that FIR should be lodged at earliest opportunity. Father of the informant has been murdered in the incident and this occurrence took place in the late hours of the night. We can imagine the mental condition of informant. Distance of the police station from the place of occurrence shown in the chik report as eight miles. The written report was submitted at the police station scribed by Raghunath who resides in another village across the river, it is there in the evidence of the prosecution. It was neither proper nor expected from the informant that in these circumstances, he should go to get prepare FIR from Raghunath by crossing the river in the night. He is "Bataidar" of Raghunath who is a literate person. Informant/complainant is not a literate person which is clear as he has affixed thumb mark on his statement recorded in the Court and also on the FIR written by Raghunath. Generally it is seen that a person approaches to another person for such purposes on whom he has some faith. Possibility may be there that in the village where the informant resides, there may be some other literate person who can help him to scribe the FIR but if he went to the house of Raghunath for this purpose, there is no unnaturality and improbability in it in the facts and circumstances of the case. In early morning, he went to the house of Raghunath after crossing the river and thereafter when he prepared the report after covering the aforesaid distance of more than 13 14 kilometers, if report is lodged at 9.30 A.M. in the next morning of the occurrence, it cannot be taken that there was any delay in lodging the FIR. As per prosecution case, after committing the offence of murder when the accused persons were leaving the place in the presence of the witnesses and informant, they have looted the ornaments from the body of Smt. Shivraji, sister of the informant, and succeeded in escaping from there with the looted articles. Details of looted ornaments given in the prompt FIR. As per prosecution case, after committing the offence of murder when the accused persons were leaving the place in the presence of the witnesses and informant, they have looted the ornaments from the body of Smt. Shivraji, sister of the informant, and succeeded in escaping from there with the looted articles. Details of looted ornaments given in the prompt FIR. These facts are supported by all the four eye-witnesses of the prosecution by their on oath statements. Smt. Shivraji has also supported this factum of loot of her ornaments by the accused persons. Learned trial court has also relied this prosecution case. There is no reasons to discard the testimony of witness on the point also. There is no reason to disturb the findings of the trial court in this regard in the facts and circumstances of the case. The simple case of the accused persons in defence is that, they have been falsely implicated in this case due to enmity. Details of enmity given that daughter of the deceased Paramhans was abducted by relative of the accused persons and he made a challenge that if they have not returned her, their ladies will also be insulted. The another defence case was that accused 'Parson' was in possession of the land of Raghunath and Raghunath was intending to sell the same but he was not vacating it so on saying of Raghunath they all were named in the FIR. Nothing said looted was recovered from their possession and alleged country made pistol used in the offence was also not recovered. Case of enmity given on behalf of the accused was denied in on oath statement by the prosecution witnesses. Neither documentary nor oral evidence was adduced on behalf of the accused to support their these case of the defence. It was the duty of the police to make efforts to recover the looted articles and also the firearm used in the occurrence. It may be said that investigating officer has not made efforts in this regard and so investigation can be said faulty, but it is established law that mere fault in investigation cannot be a ground for acquittal of the accused. It may be said that investigating officer has not made efforts in this regard and so investigation can be said faulty, but it is established law that mere fault in investigation cannot be a ground for acquittal of the accused. In (2010) 5 Supreme Court Cases 91 Abu Thakir and others vs. State of Tamil Nadu, the Hon'ble Apex Court held in Para 37 as follows :- "19......even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. ...... Criminal justice should not be made a casualty for the wrong committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case." Thus, for the fault of the prosecution the perpetrators of crime i.e. gruesome murder cannot be allowed to go scot free specially when from the testimony of the eye-witnesses case is established beyond the limit of doubt. It is not the matter of hit and run affair and commission of the murder by some unknown person. On a close analysis of the evidence of prosecution, it is obvious that the testimony of the witnesses is credible. They are unanimous about the venue, time and manner of the occurrence which finds corroboration from the medical evidence and circumstances of the case. All the assailants came close to the eye-witness at the time of the occurrence. There was sufficient light on the spot in which they were identified. Matter was promptly informed to the police. All the accused and witnesses are named in the FIR. Record shows that accused persons were not found at their house after commission of the offence for three or four days and investigating officer remained in their search, later on, they surrendered themselves in the court after six or seven days. In Allarakha vs. State reported in 2002 Cr.L.J. 1489, the Hon'ble Apex Court held that miscarriage of justice from acquittal of a guilt is no less than from convicting an innocent. In Allarakha vs. State reported in 2002 Cr.L.J. 1489, the Hon'ble Apex Court held that miscarriage of justice from acquittal of a guilt is no less than from convicting an innocent. From the above all discussions, considering the facts and circumstances of the case and taking arguments of learned counsel for the parties into consideration as well as going through the judgment delivered by the trial court, we are of the opinion that there is no illegality, invalidity and impropriety in the impugned judgment and order passed by the trial court convicting and sentencing the accused-appellants for the offence under Sections 302/34 and 394 IPC. There is no force in the appeal and the same is liable to be dismissed. Accordingly, appeal is hereby dismissed. Findings of conviction and sentence of trial court to accused appellants are confirmed. Accused-appellants are not present in the Court today. Their bail stand cancelled. Copy of the judgment along with record be sent immediately to the trial court concerned for issuing process against the accused appellants to procure their attendance and if they appear or brought before the court, they shall be taken into custody and will be sent to jail along with warrant to serve out the sentence awarded to them.