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2014 DIGILAW 2237 (ALL)

Omkar v. State of U. P.

2014-07-28

AKHTAR HUSAIN KHAN, ARUN TANDON

body2014
JUDGMENT Akhtar Husain Khan, J. 1. Present appeal has been filed by accused appellants Omkar, Ram Singh, Dambar and Sarnam under Section 374(2) Cr.P.C. against judgment and order dated 8.1.1986 passed by Sessions Judge, Badaun in Session Trial No. 364 of 1983, State Vs. Omkar and three others under Section 302 /34 and323/34 I.P.C., Crime No. 164 of 1983 P.S. Bisauli, District Badaun whereby learned Sessions Judge, Badaun has convicted aforesaid appellants for offence punishable under Section 302 /34 I.P.C. and sentenced each of them thereunder to undergo imprisonment for life. Learned Sessions Judge has further convicted accused appellant Sarnam for offence punishable 323 I.P.C. and sentenced him thereunder to undergo rigorous imprisonment for a period of three months. 2. During pendency of appeal accused appellants Ram Singh and Omkar have died and appeal stands abated in respect of them. 3. Sri Ashok Kumar Yadav, learned counsel appeared for appellants Dambar and Sarnam and learned A.G.A. Appeared for respondent State. 4. We have heard the arguments of learned counsel for accused appellants and learned A.G.A. for State. 5. According to FIR Ext. Ka-1 in brief prosecution case is that about a year ago before the occurrence a stray bull was let loose by accused Ram Singh. The said bull used to damage crops of the field, therefore, people used to remain in their field during night for watching their crops. Before present occurrence once Ram Kirpal (deceased) son of complainant Nanki Singh had chased away said bull while he was causing damage to the crops. This act of Ram Kirpal caused annoyance to accused Ram Singh and his family members. Thereafter in the intervening night of 3/4.6.1983 at about mid night when the said bull was causing damage to the crops, Ram Kirpal alongwith Rameshwar, Prempal, Suresh, Bhagwan Das, Gulfam and Ram Niwas brother-in-law of Hari chased the bull away and as soon as they reached near the village, suddenly accused Ram Singh, Dambar, Omkar and Sarnam came from the side of village. Accused Ram Singh was armed with gun and accused Dambar, Omkar and Sarnam were armed with lathies. They abused and surrounded Ram Kirpal. Ram Kirpal raised alarm, whereupon complainant Nanki Singh and Satyawati daughter of Ram Kirpal ran to the spot alongwith several other persons of village. Accused Ram Singh was armed with gun and accused Dambar, Omkar and Sarnam were armed with lathies. They abused and surrounded Ram Kirpal. Ram Kirpal raised alarm, whereupon complainant Nanki Singh and Satyawati daughter of Ram Kirpal ran to the spot alongwith several other persons of village. At the same time accused Dambar, Omkar and Sarnam assaulted Ram Kirpal with lathies and accused Ram Singh fired at him. Ram Kirpal succumbed to injuries on spot in the field of Brahmchari. Thereafter complainant Nanki Singh and others challenged the accused, whereupon accused ran away from the spot with abuses to complainant. At the time of running away accused Sarnam assaulted complainant Nanki Singh also with lathi. The complainant Nanki Singh and others saw the occurrence in the light of Torch and identified the said accused persons. 6. According to FIR Ext. Ka-1 two Police Constables also came on the spot after occurrence. Thereafter leaving the dead body of his son Ram Kirpal, complainant Nanki Singh went to Police Station Bisauli, District Badaun at 2.30 a.m. on the same day i.e. 4.6.1983 and gave oral information regarding above occurrence, which was reduced in writing in Chik FIR Ext. Ka-1 by H.C. Ram Kripal Singh and Crime No. 164/1983 under Section 302 I.P.C. was registered in P.S. Bisauli, District Badaun. Thereafter, inquest report of deceased Ram Kirpal was prepared by Investigating Officer and dead body of deceased was sent for post-mortem after completing other formalities. After completion of investigation in accordance with law police submitted charge sheet against accused Ram Singh, Dambar, Omkar and Sarnam for offence punishable under Section 302 I.P.C. Whereupon concerned Magistrate took cognizance and after compliance of Section 207 Cr.P.C. committed the case of all accused to court of session for trial. Thereafter Session Trial No. 364 of 1983, State Vs. Omkar and three others was registered in the court of Sessions Judge, Badaun. 7. Sessions Judge, Badaun framed charges for offences punishable under Sections 302 and 323/34 I.P.C. against accused Ram Singh. Learned Sessions Judge framed charges against accused Dambar, Omkar and Sarnam for offences punishable under Section 302 I.P.C. read with Section 34 I.P.C. and Section 323 I.P.C. read with Section 34 I.P.C. All the accused did not plead guilty and claimed to be tried. 8. Prosecution examined PW-1 complainant Nanki Singh, PW-2 Satyawati daughter of deceased, PW-3 Dr. Learned Sessions Judge framed charges against accused Dambar, Omkar and Sarnam for offences punishable under Section 302 I.P.C. read with Section 34 I.P.C. and Section 323 I.P.C. read with Section 34 I.P.C. All the accused did not plead guilty and claimed to be tried. 8. Prosecution examined PW-1 complainant Nanki Singh, PW-2 Satyawati daughter of deceased, PW-3 Dr. V.P. Bhatnagar, PW-4 S.I. M.P. Bhatnagar and PW-5 Dr. O.P. Chimpa to prove charges levelled against all accused. After evidence of prosecution, statements of all accused were recorded under Section 313 Cr.P.C. in which they have denied charges levelled against them and have stated that they have been implicated due to enmity. 9. In his statement under Section 313 Cr.P.C. accused Ram Singh has stated that the complainant Nanki Singh and Ram Kirpal (now deceased) had brought police to get arrested his brother Ram Nath and in encounter police made fire which caused death of deceased Ram Kirpal. 10. In his statement under Section 313 Cr.P.C., accused Omkar has also stated same fact as has been stated above by accused Ram Singh. 11. In his statement under Section 313 Cr.P.C., accussed Sarnam has stated that the field of Brahmchari is at about four Khoonti away from the field of complainant. 12. Accused has examined DW-1 Surendra Sharma, Lekhpal as defence witness. 13. After defence evidence learned trial court heard the arguments of both the parties and passed impugned judgment and order whereby he has convicted accused Omkar, Ram Singh and Dambar for offence punishable under Section 302 /34 I.P.C. and accused Sarnam Singh for offences punishable under Section 302 /34 I.P.C. and Section 323 I.P.C. and awarded sentence therefor as mentioned above. 14. Learned counsel for accused appellants contended that the FIR is ante time and whole story of prosecution is concocted. 15. Learned counsel for accused appellants further contended that out of five witnesses examined by prosecution, only PW-1 complainant Nanki Singh and PW-2 Satyawati are witnesses of occurrence. 16. Learned counsel for accused appellants further contended that other witnesses of occurrence have been named in the FIR Ext. Ka-1 as well as in charge sheet but they have not been examined by prosecution. Their adverse inference shall be drawn against prosecution. 17. Learned counsel for accused appellants contended that it is apparent from the version of FIR Ext. 16. Learned counsel for accused appellants further contended that other witnesses of occurrence have been named in the FIR Ext. Ka-1 as well as in charge sheet but they have not been examined by prosecution. Their adverse inference shall be drawn against prosecution. 17. Learned counsel for accused appellants contended that it is apparent from the version of FIR Ext. Ka-1 that according to prosecution version occurrence has taken place when deceased Ram Kirpal was chasing bull alongwith Rameshwar, Prampal, Suresh, Ram Niwas and Gulfam but the prosecution has examined none of them to prove his version. Thus, the prosecution has failed to prove genesis of occurrence. 18. Learned counsel for accused appellants contended that PW-2 Satyawati daughter of deceased has stated his age 11 years on 20.2.1985 at the time of her examination before court while the date of occurrence is 4.6.1983, thus it is apparent that she was about nine year old at the time of occurrence, therefore, it is not reliable that she had come on spot after hearing noise. 19. Learned counsel for accused appellants further contended that according to prosecution PW-1 complainant Nanki Singh and PW-2 Satyawati came on spot from the village after having heard alarm raised by deceased Ram Kirpal when he was surrounded by accused and PW-1 complainant Nanki Singh has admitted in his cross examination that the place of occurrence is on the southern side of the village while his house is on the northern side of village, therefore, it is quite unreliable that after hearing alarm raised by accused Ram Kirpal, complainant Nanki Singh and his grand-daughter PW-2 Satyawati daughter of deceased reached the spot and saw the occurrence. 20. Learned counsel for accused appellants contended that the statements of accused recorded under Section 313 Cr.P.C., is against law and all incriminating materials have not been put to accused for explanation which has caused great prejudice to accused in their defence. 21. Learned counsel for appellants contended that even on facts alleged by prosecution offence under Section 302 IPC is not proved. According to prosecution, occurrence has taken place without premeditation on alleged sudden chasing of Bull by Ram Kirpal (now deceased) and others. Therefore, even if the case of prosecution is accepted, exception 4 of Section 300 I.P.C. shall be applicable. 22. According to prosecution, occurrence has taken place without premeditation on alleged sudden chasing of Bull by Ram Kirpal (now deceased) and others. Therefore, even if the case of prosecution is accepted, exception 4 of Section 300 I.P.C. shall be applicable. 22. In view of above contentions learned counsel for accused respondent contented that the statements of PW-1 Nanki Singh and PW-2 Satyawati are quite unreliable and prosecution has failed to prove the charges levelled against accused appellants. 23. Learned counsel for appellants prayed that the appeal should be allowed and accused appellants should be acquitted. 24. Learned counsel for appellants has cited following Rulings in support of his contentions: - 1. Ranvir Yadav Vs. State of Bihar reported in 2009-TLPRE-0-658 : 2009 GLJ 2963 : 2009(6) SCC 595 : 2009 (3) SCC (Crl.) 92. 2. Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 S.C.C. 116 . 3. Ajmer Singh Vs. State of Punjab reported in 1952-LAWS (SC)-12-19. 4. Subhash Kamkar Vs. State of Bihar reported in LAWS (PAT)-1985-1-4/Crimes-1985-2-129. 5. Abdul Mazid Vs. State of Assam reported in LAWS(SC)-1993-3-13 : AIR 1994 SC 1487 . 6. Surendra Singh alias Bittu Vs. State of Uttaranchal reported in (2006) 3 S.C.C. (Cri) 328. 25. Learned A.G.A. contended that it is apparent from the statements of accused Ram Singh and Omkar recorded under Section 313 Cr.P.C. that they have admitted that the occurrence has taken place at the time and place alleged by prosecution and in the said occurrence deceased Ram Kirpal has received injuries which caused his death. 26. Learned A.G.A., further contended that in view of statements of above two accused recorded under Section 313 Cr.P.C. as well as evidence adduced by prosecution, the trial court has rightly held accused Omkar, Ram Singh and Dambar guilty of offence punishable under Section 302 /34I.P.C. and accused Sarnam guilty of offences punishable under Section 302 /34 I.P.C. and Section 323 I.P.C. The conviction and sentence recorded by trial court against accused appellants is in accordance with law and evidence. There is no sufficient ground to interfere in the impugned judgment and order passed by trial court. 27. Learned A.G.A. prayed that appeal should be dismissed. 28. We have considered the submissions made by both the parties. 29. Out of above five witnesses examined by prosecution PW-1 complainant Nanki Singh and PW-2 Satyawati are witnesses of occurrence and have supported prosecution version. 27. Learned A.G.A. prayed that appeal should be dismissed. 28. We have considered the submissions made by both the parties. 29. Out of above five witnesses examined by prosecution PW-1 complainant Nanki Singh and PW-2 Satyawati are witnesses of occurrence and have supported prosecution version. 30. PW-1 complainant Nanki Singh has proved FIR Ext. Ka-1 also in his statement. 31. PW-3 Dr. V.P. Bhatnagar has stated on oath that on 4.6.1983 he was posted as Medical Officer, Badaun. He examined the injury of complainant Nanki Singh on that day at 12.30 p.m.. He found a contusion 12 cm. X 2 cm. on the outer part of left thigh. In his statement Dr. V.P. Bhatnagar has proved injury report of complainant Nanki Singh Ext. Ka-2 in accordance with law. 32. PW-4 S.I. M.P. Bhatnagar is the Investigating Officer. He has proved Carbon copy of General Diary Ext. Ka-3, inquest report Ext. Ka-4, Khaka Nash Ext. Ka-5, Challan Nash Ext. Ka-6, letter to R.I. Ext. Ka-7 and letter to C.M.O. Ext. Ka-8. He has stated in his statement that he sent the dead body of Ram Kirpal in sealed cover for post-mortem. He has proved sample of seal Ext. Ka-9 also. He has stated that he made inspection of place of occurrence and prepared site plan Ext. Ka-10. 33. PW-4 S.I. M.P. Bhatnagar has further proved memo of blood stained earth and bare earth Ext. Ka-11 also. He has stated in his statement that from the place of occurrence one pair of shoes and one pair of chappal were taken. He has proved Fard of said shoes and chappal Ext. Ka-12. 34. P.W.-4 S.I. M.P. Bhatnagar has proved material exhibits i.e. containers of blood shed earth and bare earth Ext.-1 and 2 and said shoes and chappal Ext.-3 and 4 also. He has also proved Fard torch Ext. Ka-13 and Ka-14 and has stated that after having completed investigation he submitted Original charge sheet Ext. Ka-15 against accused Dambar, Ram Singh and Sarnam and charge sheet Ext. Ka-16 against Omkar in the court. 35. PW-5 Dr. O. P. Chimpa has stated in his statement that on 4.6.1983 he was posted as Medical Officer in District Jail Hospital, Badaun. On that day at 4.10 p.m. he conducted post-mortem of deceased Ram Kirpal. He has proved postmortem report of deceased Ram Kirpal Ext. Ka-17 in accordance with law. 36. Ka-16 against Omkar in the court. 35. PW-5 Dr. O. P. Chimpa has stated in his statement that on 4.6.1983 he was posted as Medical Officer in District Jail Hospital, Badaun. On that day at 4.10 p.m. he conducted post-mortem of deceased Ram Kirpal. He has proved postmortem report of deceased Ram Kirpal Ext. Ka-17 in accordance with law. 36. DW-1 Sri Surendra Sharma examined by defence has proved topography of various plots situated at the place of occurrence. 37. The above description of evidence adduced by parties shows that only PW-1 complainant and PW-2 Satyawati are witnesses of occurrence. 38. According to FIR Ext. Ka-1 the genesis of occurrence is chasing of bull by deceased Ram Kirpal alongwith Rameshwar, Prempal, Suresh, Bhagwan Das, Gulfam and Ram Niwas. According to FIR version Ext. Ka-1 it has been mentioned that while Ram Kirpal and above persons chasing the bull reached near village, suddenly accused Ram Singh, Dambar, Omkar and Sarnam came from the side of village and caused occurrence but Rameshwar, Prempal, Suresh, Bhagwan Das, Gulfam and Ram Niwas have not been examined by prosecution. 39. In the case of Narpal Singh Vs. State of Haryana 1977 Cr.L.J. 642 SC at Page 649, Hon'ble Apex Court held that" If the witnesses examined are believed, the question of inference for non-examination does not arise." 40. In view of above pronouncement of Hon'ble Apex Court, we are of the view that first of all, we should examine as to whether the witnesses examined by prosecution are reliable witnesses and their testimonies should be relied upon. 41. Perusal of Chik FIR Ext. Ka-1 and carbon copy of G.D. (relating to registration of crime) Ext. Ka-3 shows that PW-1 complainant Nanki Singh has lodged report in P.S. Bisauli, District Badaun on 4.6.1983 at 2.30 a.m. while time of occurrence is mentioned mid night. The distance of place of occurrence from police station Bisauli is one and half Km.. Thus, it is apparent that FIR is prompt. Inquest report Ext. Ka-4 has been completed on 4.6.1983 at 5.50 a.m.. Inquest report contains number and Section of crime. 42. Perusal of photo nash Ext. ka-5, challan nash Ext. Ka-6, letter to R.I. Ext. Ka-7 and report to C.M.O. Ext. Ka-8 shows that the crime number and Sections have been mentioned in all the said papers. 43. Inquest report Ext. Ka-4 has been completed on 4.6.1983 at 5.50 a.m.. Inquest report contains number and Section of crime. 42. Perusal of photo nash Ext. ka-5, challan nash Ext. Ka-6, letter to R.I. Ext. Ka-7 and report to C.M.O. Ext. Ka-8 shows that the crime number and Sections have been mentioned in all the said papers. 43. There is nothing either in statements of witnesses of occurrence PW-1 complainant Nanki Singh and PW-2 Satyawati or in statement of I.O. PW-4 S.I. M.P. Bhatnagar to show that the FIR is ante time. In FIR Ext. Ka-1 as well as in statements of PW-1 complainant Nanki Singh and PW-2 Satyawati, it has come that after occurrence two constables who were in gast had come on the spot. Thereafter leaving the dead body of Ram Kirpal, complainant went to P.S. Bisauli and lodged report. Thus, the evidence on record shows that the FIR has been lodged by complainant Nanki Singh on 4.6.1983 at 2.30 a.m. and there is nothing on record to believe that the FIR is ante time. 44. In view of above, we are of the view that the FIR has been lodged promptly and the carbon copy of G.D. Relating to registration of crime Ext. Ka-3 shows that in G.D. Injury of complainant has been entered at the time of lodging FIR. 45. In FIR Ext. Ka-1 it has specifically been mentioned that accused Sarnam assaulted complainant Nanki Singh also with lathi. 46. Injury of complainant Nanki Singh has also been proved by PW-3 Dr. V.P. Bhatnagar. He has proved injury report of complainant Nanki Singh Ext. Ka-2 also. There is nothing on record to show that injury report of complainant is fabricated. 47. PW-1 complainant Nanki Singh and PW-2 Satyawati have also stated in their statements on oath that accused Sarnam assaulted complainant Nanki Singh with lathi. Therefore, considering the whole evidence as well as circumstances of the case, we are of the view that prosecution has succeeded to prove that complainant Nanki Singh had received injury in the occurrence and his injury has been caused by accused Sarnam Singh with lathi. 48. PW-1 complainant Nanki Singh has stated in his statement that having heard the noise he and his grand-daughter Satyawati reached on spot. 48. PW-1 complainant Nanki Singh has stated in his statement that having heard the noise he and his grand-daughter Satyawati reached on spot. In cross-examination at page 10/page 21 of paper book PW-1 complainant Nanki Singh has stated that his house is situated on the southern side of village abadi while the place of occurrence is on northern side of village. In continuation of this statement he has further stated that his 'Gher' is at a distance of 100-125 steps from the place of occurrence. He has stated in his cross-examination at the same page-10 that at the time of occurrence, he was at his 'Gher' and when he heard the noise, he was at his 'Gher'. Thus, it is apparent from the statement of PW-1 complainant Nanki Singh that after hearing the noise he went to the place of occurrence from his 'Gher' which is 100-125 steps away from the place of occurrence. 49. PW-2 Satyawati has also stated in her statement that at the time of occurrence she was at her 'Gher' with her grand-father complainant Nanki Singh. Thus it is apparent that both PW-1 complainant Nanki Singh and PW-2 Satyawati were at their 'Gher' at the time of occurrence and the said 'Gher' is 100-125 steps away from the place of occurrence. 50. Learned counsel for the appellants failed to show any evidence or material on record to disbelieve the distance of 'Gher' stated by PW-1 Nanki Singh. Defence has examined DW-1 Surendra Verma, Lekhpal of village but this witness has not disclosed distance of 'Gher' of complainant Nanki Singh from the place of occurrence, therefore, we are of the view that there is nothing on record to disbelieve the statement of PW-1 Nanki Singh regarding distance of 'Gher'. 51. Perusal of site plan Ext. Ka-10 shows that I.O. has not shown the 'Gher' of complainant but he has shown in site plan that village abadi is 75 steps away from the place of occurrence. Thus, it is apparent from the site plan that the village abadi is not far away from the place of occurrence. From the distance of 100-125 steps noise and shouting may be heard easily. Therefore, having heard the noise PW-1 complainant Nanki Singh and PW-2 Satyawati may easily reach on spot. 52. Thus, it is apparent from the site plan that the village abadi is not far away from the place of occurrence. From the distance of 100-125 steps noise and shouting may be heard easily. Therefore, having heard the noise PW-1 complainant Nanki Singh and PW-2 Satyawati may easily reach on spot. 52. In view of discussions made above and after having gone through whole evidence on record as well as circumstances of the case, we are of the view that statement of PW-1 complainant Nanki Singh is highly reliable and there is no sufficient ground to disbelieve his statement regarding occurrence. 53. PW-2 Satyawati is named in FIR and from discussion made above it is apparent that she was in Gher with PW-1 complainant Nanki from where they reached spot after hearing noise. There appears no reasonable ground to deny her presence. 54. Learned counsel for appellants has drawn our attention to the following statement of PW-1 complainant Nanki Singh made in cross-examination at page 17 (page 27 of paper book): - ---Hindi--- 55. Learned counsel for appellants has argued that the complainant Nanki Singh has not stated in his said statement that his grand-daughter PW-2 Satyawati was also living in the Gher, therefore, presence of Satyawati is doubtful. He has further argued that the above statement of PW-1 complainant Nanki Singh shows that his widow daughter-in-law was also living in the Gher but she has not gone to place of occurrence and has not been named as witness. 56. We have considered the arguments advanced by appellants' counsel. In his above statement complainant PW-1 Nanki Singh has not stated that his widow daughter-in-law was also present at the Gher at the time of occurrence. Therefore, presence of widow daughter-in-law of complainant at the time of occurrence in Gher is not proved. It is apparent from the statements of PW-1 complainant Nanki Singh and PW-2 Satyawati that they went to the place of occurrence from the Gher after hearing the noise and there is no sufficient ground to disbelieve this statements of PW-1 complainant Nanki Singh and PW-2 Satyawati. 57. Learned counsel for the appellants has drawn our attention to the statements of PW-1 complainant Nanki Singh and PW-2 Satyawati made in cross examination, in which they have stated that they went to spot after having heard, while in FIR Ext. 57. Learned counsel for the appellants has drawn our attention to the statements of PW-1 complainant Nanki Singh and PW-2 Satyawati made in cross examination, in which they have stated that they went to spot after having heard, while in FIR Ext. Ka-1 the complainant Nanki Singh has stated that he and PW-2 Satyawati went to spot after having heard alarm raised by Ram Kirpal, therefore, there is material contradiction in the version of FIR and statements of PW-1 complainant Nanki Singh and PW-2 Satyawati. 58. Learned counsel for the appellants has further drawn our attention to certain other statements of PW-1 and PW-2 made by them in cross examination to show contradiction. 59. We have perused the whole statements of PW-1 complainant Nanki Singh and PW-2 Satyawati. We have perused FIR Ext. Ka-1 also. The complainant has given oral information on the basis of which FIR Ext. Ka-1 has been written by H.C. Ram Kripal Singh. PW-1 complainant Nanki Singh is an illiterate rustic witness. His grand-daughter Satyawati is also illiterate child. Therefore, certain contradictions in their statements and FIR are natural. From perusal of FIR it is apparent that the PW-1 complainant Nanki Singh and PW-2 Satyawati have reached spot from village abadi after having heard the noise. They have stated in their statements on oath also that they reached spot after hearing noise. Only there is difference as to what was the words of noise and this difference appears to us immaterial. 60. In the case of State of U.P. Vs. Krishna Master & others; 2010 Cri. L.J. 3889 (SC) Hon'ble Apex Court further held that," the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole." 61. In the case of State of U.P. Vs. Krishna Master & others (supra), Hon'ble Apex Court further held that," The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof." 62. In the case of Sampath Kumar Vs. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof." 62. In the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri 2012 (IV) SCC 124 , Hon'ble Apex Court held," that minor contradictions are bound to appear in the statement of truthful witnesses as memory sometimes plays false, sense of observation differs from person to person. 63. Therefore, in view of above pronouncements of Hon'ble Apex Court, we are of the view that the contradiction alleged by appellants' counsel is not sufficient to disbelieve the testimonies of PW-1 complainant Nanki Singh and PW-2 Satyawati regarding occurrence. 64. In the case of Vithal Vs. State of Maharashtra (2008) 1 SCC Crl. 91 Hon'ble Apex Court has held that the testimony of mother of deceased should not be discarded on the ground that she is an interested witness. 65. In the case of Kapildeo Mandal & others Vs. State of Bihar; AIR 2008 SC 533 , Hon'ble Apex Court held that "The credibility of a witness cannot be judged merely on the basis of his close relation with the deceased and as such cannot be a ground to discard his testimony, if it otherwise inspires confidence." 66. PW-1 complainant Nanki Singh is the father of deceased and PW-2 Satyawati is the daughter of deceased Ram Kirpal but on the ground of relationship their testimony may not be disbelieved as is apparent from above pronouncements of Hon'ble Apex Court. 67. In the case of Subhash Kamkar Vs. State of Bihar Laws (PAT)-1985-1-4 Crimes-1985-2-129 High Court Patna has not relied statement of injured witness on the ground that her statement suffers from several blemishes and she is highly interested witness. But in view of discussion made above statements of PW-1 injured Nanki Singh and PW-2 Satyawati appears free from doubt and there appears no sufficient ground to disbelieve them. 68. Perusal of statement of PW-5 Dr. O.P. Chimpa and post-mortem report of deceased Ext. Ka-17 shows that following ante mortem injuries were found on the dead body of deceased Ram Kirpal: - 1. Abraded contusion 3 cm. x 3 cm on top of head slightly right side to midline. Underneath mussles were congested and frontal and right parietal bones were fractured under injury. 2. Lacerated wound 1.5 cm x 0.5 cm on upper lip 1.5 cm from angle of mouth. Abraded contusion 3 cm. x 3 cm on top of head slightly right side to midline. Underneath mussles were congested and frontal and right parietal bones were fractured under injury. 2. Lacerated wound 1.5 cm x 0.5 cm on upper lip 1.5 cm from angle of mouth. Underneath upper left 7th tooth broken. 3. Gunshot wound of entry 3 cm x 4 cm on left side chest 8 cm from the left nipple at 4 O' Clock position directing medially and backward. Margin of the wounds inverted. Blackening not present around the wound. 6th and 7th ribs fractured below wound. Mussels and facia concerted. One corp piece, one Tiklee recovered from the posterior part of the lung near back bone. 35 small pellets were recovered from lung tissues and heart tissues. 69. Statement of PW-5 Dr. O.P. Chimpa as well as post-mortem report of deceased Ram Kirpal Ext. Ka-17 shows that post-mortem of deceased Ram Kirpal has been conducted by PW-5 Dr. O.P. Chimpa on 4.6.1983 at 4.10 p.m.. PW-5 Dr. O.P. Chimpa has stated in his statement that injuries no. 1 and 2 of deceased may be caused by blunt object such as lathi while injury no. 3 may be caused by fire arm. He has further stated in his statement that death of deceased Ram Kirpal may occur at mid night of intervening night of 3/4-6-1983. According to prosecution version accused Dambar, Omkar and Sarnam caused blows of lathies to deceased while accused Ram Singh caused fire arm injury to him. Post-mortem report Ext. Ka-17 and statement of PW-5 Dr. O.P. Chimpa corroborates the facts that injuries no. 1 and 2 of deceased have been caused by blunt object (lathi) and his injury no. 3 has been caused by fire arm. Thus, the version of FIR and statement of ocular witnesses are supported by medial evidence. 70. It is relevant to mention that the number of accused is four. Out of which three accused Dambar, Omkar and Sarnam are alleged to have used lathi and accused Ram Singh is alleged to have used fire arm but the number of injuries caused by lathi is two, therefore, it may be argued by defence that prosecution version is against truth. We have considered this aspect also. The person being beaten shall not place him before accused for causing injury. We have considered this aspect also. The person being beaten shall not place him before accused for causing injury. He shall try to escape and to save injuries, therefore, it is not necessary that every blow made by assailants shall cause injury to victim. In addition to it, from the statement of PW-5 Dr. O.P. Chimpa as well as from post-mortem report of deceased Ext. Ka-17 it is apparent that his injury no. 1 is abraded contusion 3 cm x 3 cm on top of head. Dimension of this injury shows that it may be affect of two blows. 71. From FIR to statements of witnesses before trial court, prosecution has specific case that accused Dambar, Omkar and Sarnam gave lathi blows to Ram Kirpal and accused Ram Singh fired at him. 72. In view of conclusion drawn above, the statements of ocular witnesses PW-1 complainant Nanki Singh and PW-2 Satyawati appears highly reliable, therefore, the statements of ocular witnesses should not be discarded merely on the ground that the number of injuries caused by lathi is less than the number of the accused alleged to have used lathi. In this context, we refer pronouncement of Hon'ble Apex Court in the case of Ravi Kumar Vs. State of Punjab reported in AIR 2005 (SC) 1929 . In the said pronouncement Hon'ble Apex Court held that when the ocular evidence is cogent and incredible, medical evidence to the contrary cannot corrode the evidentially value of the former. 73. Perusal of statement of I.O. PW-4 S.I. M.P. Bhatnagar and site plan Ext. Ka-10 shows that dead body of the deceased has been found on the place alleged by prosecution. Perusal of statement of I.O. PW-4 S.I. M.P. Bhatnagar and Fard blood stained earth and bare earth shows that blood has been found on the place where dead body was found. There is nothing on record to show that the occurrence has taken place on any other place. Therefore, considering whole evidence on record, we are of the view that the place of occurrence alleged by prosecution is corroborated by statement of I.O. and site plan Ext. Ka-10. 74. There is nothing on record to show that the occurrence has taken place on any other place. Therefore, considering whole evidence on record, we are of the view that the place of occurrence alleged by prosecution is corroborated by statement of I.O. and site plan Ext. Ka-10. 74. In view of conclusion drawn above, it is apparent that FIR is prompt and the statements of PW-1 complainant Nanki Singh and PW-2 Satyawati are highly reliable and the statements of these two witnesses are fully corroborated by medical evidence and statement of I.O. and site plan Ext. Ka-10. 75. It is relevant to mention at this place that it appears natural that no one shall take risk of enmity by appearing in witness box against anyone in heinous crime like murder punishable under Section 302 I.P.C. Therefore, considering whole facts and circumstances of the case and principle laid down by Hon'ble Apex Court in the case of Narpat Singh Vs. State of Haryana(supra), we are of the view that the credibility of witnesses PW-1 complainant Nanki Singh and PW-2 Satyawati may not be adversely effected for non examination of other witnesses of occurrence. 76. As mentioned above, accused Ram Singh and Omkar have stated in their statements made under Section 313 Cr.P.C. that complainant Nanki Singh and Ram Kirpal (now deceased) have called police to get his brother Ram Nath arrested and in encounter police made fire which caused death of Ram Kirpal but there is nothing on record to prove this version of defence and no evidence has been adduced by defence regarding occurrence alleged by said accused. Suggestion given by defence to PW-1 complainant Nanki Singh and PW-2 Satyawati in this respect has been negatived by them. Time and place of occurrence have not been challenged by defence in cross examination of witnesses. In the case of Mohan Lal Vs. State of U.P.; AIR 1974 S.C. 1144 , Hon'ble Apex Court has held that, "falsity of plea put forward in defence may be taken into consideration in deciding if the charge has been brought home to the accused." 77. Defence has failed to show any evidence on record to support occurrence alleged by said two accused in their statements under Section 313 Cr.P.C.. Thus, prosecution has failed to prove that death of deceased Ram Kirpal has been caused in the manner alleged by said two accused. Defence has failed to show any evidence on record to support occurrence alleged by said two accused in their statements under Section 313 Cr.P.C.. Thus, prosecution has failed to prove that death of deceased Ram Kirpal has been caused in the manner alleged by said two accused. In such circumstances, in view of pronouncement of Hon'ble Apex Court rendered in the case of Mahan Lal Vs. State of U.P. (supra), we are of the view that time and place of occurrence and presence of PW-1 complainant Nanki Singh at the time of occurrence find support from the statements of two accused recorded under Section 313 Cr.P.C.. 78. In FIR Ext. Ka-1 it has been specifically mentioned that occurrence has been seen by complainant Nanki Singh and others in the light of torch. Perusal of statement of I.O. PW-4 S.I. M.P. Bhatnagar and fard torch Ext. Ka-14 shows that I.O. had seen torch of complainant Nanki Singh on 4.6.1983 and had prepared fard Ext. Ka-14 at the same time. 79. Perusal of statement of I.O. P.W.-4 S.I. M.P. Bhatnagar and Fard torch Ext. Ka-14 shows that on 4.6.1983 I.O. had seen torch of another witness Prempal also and had prepared fard torch Ext. Ka-13 on the same day. PW-1 complainant Nanki Singh and PW-2 Satyawati both have stated in their statements that they have seen occurrence in the light of torch. Considering whole evidence on record, we are of the view that source of light torch at the time of occurrence is proved. 80. PW-1 complainant Nanki Singh has stated in his statement on oath that about six years ago before the present occurrence, there had been a loot at his house for which FIR was lodged by his son Ram Prakash against accused Ram Singh and his brother Ram Nath. PW-1 complainant Nanki Singh has further stated in his statement on oath that accused Ram Singh was arrested by police before six months of occurrence while his brother Ram Nath named in the said loot was absconding. The statements of above two accused recorded under Section 313 Cr.P.C.. also show that it is admitted by them that accused Ram Nath was absconding at the time of occurrence. Therefore, previous enmity between complainant and accused is proved. The statements of above two accused recorded under Section 313 Cr.P.C.. also show that it is admitted by them that accused Ram Nath was absconding at the time of occurrence. Therefore, previous enmity between complainant and accused is proved. Apart from it, according to FIR and statements of witnesses, the immediate cause of occurrence was chasing away of bull of accused Ram Singh by deceased Ram Kirpal and others and this version of FIR has been proved by PW-1 complainant Nanki Singh and PW-2 Satyawati. 81. Therefore, considering whole evidence on record, we are of the view that the prosecution has fully succeeded in proving motive and cause of occurrence. 82. In the case of Ranvir Yadav Vs. State of Bihar reported in 2009-TLPRE-0-658 : 2009 GLJ 2963 : 2009(6) SCC 595 : 2009 (3) SCC (Crl.) 92 in para-10, Hon'ble Apex Court has held as under: - 10. It is true as contended by learned counsel for the appellant that no incriminating materials were put to the accused under Section 313 of the Code. There is no accusation specifically put in question during examination as quoted above. It only refers to victim of kidnapping. So far as the question No. 8 is concerned same relates to PW 10. He did not say that he had seen gun fired by the appellant. 83. In this case because of serious lapses on the part of trial court conviction recorded by trial court was set a side. 84. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 S.C.C. 116 in para 145, Hon'ble Apex Court has held as under: - 145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration. 85. In the case of Ajmer Singh Vs. State of Punjab reported in 1952-LAWS (SC)-12-19, Hon'ble Apex Court has held that, "accused must be questioned separately about material circumstances to be used against him." 86. In this case of Ajmer Singh Vs. 85. In the case of Ajmer Singh Vs. State of Punjab reported in 1952-LAWS (SC)-12-19, Hon'ble Apex Court has held that, "accused must be questioned separately about material circumstances to be used against him." 86. In this case of Ajmer Singh Vs. State of Punjab (supra), Hon'ble Apex Court has concluded as under: - In this particular case at one stage of the argument we were inclined to order a retrial of the accused in view of the defective examination of the accused by the Sessions Judge but on further thought we have reached the conclusion that the High Court was right in the view that the defective procedure followed by the Sessions Judge in this respect has not occasioned any prejudice to the accused. 87. In view of above conclusion, Hon'ble Apex Court dismissed the appeal. 88. In the case of Parashu Ram Pandey Vs. State of Bihar reported in AIR 2004 S.C. 5068 , Hon'ble Apex Court has held that, "no prejudice of accused was shown. Accused cannot get benefit of defective recording of statement under Section 313 Cr.P.C.". 89. In the case of Suresh Chandra Bahri Vs. State of Bihar reported in AIR 1994 S.C. 2420 , Hon'ble Apex Court held that, 'only because examination is inadequate it cannot be held that the accused has been prejudiced." 90. We have perused the statements of accused recorded under Section 313 Cr.P.C. in the light of above pronouncements of Hon'ble Apex Court. 91. Perusal of statements of accused recorded under Section 313 Cr.P.C. shows that ten questions have been formed by trial court for statements of accused under Section 313 Cr.P.C. and all the incriminating evidence and material regarding occurrence and offence in general has been put to all the accused but no specific question regarding evidence of I.O. and medical evidence has been put to accused. The name of witnesses examined have also not been mentioned. Thus, we are of the view that statements of accused recorded under Section 313 Cr.P.C. are inadequate. But in Memo of Appeal, appellants have not challenged the judgment and order of trial court on the ground of defective statements recorded under Section 313 Cr.P.C.. In Memo of Appeal, appellants have not alleged that they have been prejudiced with defective recording of statements under Section 313 Cr.P.C.. But in Memo of Appeal, appellants have not challenged the judgment and order of trial court on the ground of defective statements recorded under Section 313 Cr.P.C.. In Memo of Appeal, appellants have not alleged that they have been prejudiced with defective recording of statements under Section 313 Cr.P.C.. During argument before us, learned counsel for appellants failed to show us as to how accused appellants were prejudiced with the defective statements under Section 313 Cr.P.C.. It is relevant to mention at this juncture that accused has been furnished copies of all documents relied by prosecution under Section 207 Cr.P.C.. Statements of witnesses have been recorded by trial court in presence of accused appellants and all the witnesses have been cross examined by defence in length. Therefore, it is apparent that all the evidence adduced by prosecution was in notice of accused appellants and death of deceased Ram Kirpal is an admitted fact to defence. Therefore, considering the whole circumstances of the case, we are of the view that no prejudice has been caused to defence due to defective statements of accused under Section 313 Cr.P.C.. 92. In view of conclusion drawn above, we are of the view that trial court has rightly placed reliance on the evidence of PW-1 complainant Nanki Singh and PW-2 Satyawati to hold accused appellants guilty. Evidence on record appears sufficient to prove genesis of occurrence as well as manner of occurrence alleged by prosecution. 93. Now, we have to see as to whether offence punishable under Section 302 I.P.C. is made out against accused appellants or offence punishable under Section 304 part II I.P.C. is made out against accused appellants. 94. In the case of Abdul Mazid Vs. State of Assam reported in AIR (SC)-1994-o-1487 : AIR 1994 S.C. 1487 , Hon'ble Apex Court has held that," At any rate that the injury caused by the accused was sufficient in the ordinary course of nature to cause death has not been objectively proved, in the absence of such a proof clause (3) of Section 300 I.P.C. is not attracted. Therefore, the conviction under Section 302 I.P.C. cannot be sustained." 95. In the case of Surendra Singh alias Bittu Vs. State of Uttaranchal reported in (2006) 3 S.C.C. (Cri) 328, Hon'ble Apex Court held that," only one shot was fired. The applicant was not apprehended on the spot. Therefore, the conviction under Section 302 I.P.C. cannot be sustained." 95. In the case of Surendra Singh alias Bittu Vs. State of Uttaranchal reported in (2006) 3 S.C.C. (Cri) 328, Hon'ble Apex Court held that," only one shot was fired. The applicant was not apprehended on the spot. In a situation of this nature, we are of the opinion that it cannot be said that appellant has intention to kill the deceased". 96. In the above pronouncements Hon'ble Apex Court has modified conviction recorded under Section 302 I.P.C. to conviction under Section 304 Part-II I.P.C. 97. Description of ante mortem injuries of deceased Ram Kirpal mentioned above shows that his injury no. 1 was on head and his frontal and right parietal bones had been fractured. Similarly, his injury no. 2 is on mouth and his upper left 7th tooth was broken. His injury no. 3 was on the chest. 98. PW-5 Dr. O.P. Chimpa has stated in his statement on oath that the ante mortem injuries found on the body of deceased were sufficient for causing death. Therefore, considering the nature of injuries caused to deceased as well as evidence of PW-1 complainant Nanki Singh and PW-2 Satyawati, we are of the view that it is difficult to say that the intention of accused appellants was not to kill the deceased. The place of injuries shows that injuries have been caused on vital part of deceased and injuries caused to him was sufficient for causing death. Exception-4 of Section 300 I.P.C. appears relevant to quote: - Exception-4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. 99. In the case of Sikander Mohd. Safiq Vs. State of Delhi (Delhi Administration) reported in AIR 1999 SC 1406 , Hon'ble Apex Court has held that," to invoke Exception-4 of Section 300 I.P.C. the culpable homicide decide in Section 299 I.P.C. must be committed; firstly without premeditation; secondly in a sudden fight; thirdly in a sudden quarrel and lastly without offender having taken undue advantage for acting with cruelty or in unnatural manner. 100. The seat of injuries as well as nature of injuries of deceased shows that the accused appellants have acted with cruelty and in unnatural manner. 100. The seat of injuries as well as nature of injuries of deceased shows that the accused appellants have acted with cruelty and in unnatural manner. Therefore, Exception 4 of Section 300 I.P.C. is not applicable and the offence is covered with culpable homicide amounting to murder which is punishable under Section 302 I.P.C. 101. We have perused impugned judgment and order passed by learned trial court. Learned trial court has gone through whole evidence on record and has discussed evidence on record in detail. In view of conclusion drawn above, we are of the view that learned trial court has committed no error in placing reliance on testimonies of witnesses examined by prosecution to convict accused appellant Dambar and Sarnam for offence punishable under Section 302 /34 I.P.C. Conviction recorded by trial court under Section 302 I.P.C. read with Section 34 I.P.C. is in accordance with evidence and law. 102. For the reasons recorded above, we are of the view that trial court has committed no mistake in further holding accused appellant Sarnam guilty of offence punishable under Section 323 I.P.C. 103. The sentence awarded by trial court does not appear excessive and no appeal has been filed by State for enhancement of sentence, we find no justification to interfere in the judgment and order passed by trial court. We are of the view that the appeal has no merit and is liable to be dismissed. 104. The appeal is dismissed accordingly. 105. Accused appellants Dambar and Sarnam are on bail. They shall surrender before trial court within one month from the date of this judgment to serve sentence awarded to them, failing which trial court shall ensure their arrest and shall send them jail for serving sentence. 106. Let a copy of this judgment be sent to trial court for securing compliance. 107. Send back records of trial court immediately.