Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2651 (ALL)

Vishwanath v. State of U. P.

2014-08-28

AKHTAR HUSAIN KHAN, ARUN TANDON

body2014
JUDGMENT Akhtar Husain Khan,J Above appeal No.1846 of 1986 (Vishwanath and another Vs. State of U.P.) and Criminal Revision No.1685 of 1986 (Kedar Pandey Vs. Ram Bahal Pandey and others) both are arising out of same judgement and order dated 30.5.1986 passed by learned Vth Additional Sessions Judge, Gorakhpur in S.T. No.344 of 1984 (State Vs. Ram Bahal Pandey and others), under sections 147, 148, 149, 302 I.P.C., Police Station Khajani, District Gorakhpur. Therefore for sake of convenience appeal and revision both are decided by this common judgement. 2. Appeal has been filed by accused appellants Vishwanath and Vijai Prakash u/s 374(2) Cr.P.C. against conviction recorded against them for offence punishable under section 302 read with section 34 I.P.C. as well as against sentence awarded there under that is life imprisonment while revision has been filed by complainant Kedar Nath Pandey u/s 397/401 Cr.P.C. against acquittal recorded in favour of opposite parties no.1 to 4 namely Ram Bahal Pandey, Gulab, Vishambhar and Vindhyachal. 3. In appeal Shri J.N. Sharma appeared for accused-appellants and learned A.G.A. Shri S.L. Kesarwani appeared for respondent-State. 4. Accused appellant Vishwanath is reported dead. Appeal abated in respect of accused appellant Vishwanath. 5. In revision Shri Shad Khan and Shri Shishir Prakash appeared for complainant-revisionist and Shri J.N. Sharma, Shri M.N. Singh and Shri V.K.Singh, learned counsel appeared for opposite parties no. 2, 3 and 4. 6. Opposite party no.1 Ram Bahal Pandey is reported dead. Revision abated in respect of opposite party no. 1 Ram Bahal Pandey. 7. We have heard the parties in appeal and revision both. We have also perused records. 8. According to the first information report Exhibit Ka.1 prosecution version is that accused Rambahal Pandey, Vishwanath, Vijai Prakash, Vindhyachal, Gulab and Vishambhar were making pressure on complainant Kedar Nath Pandey to compromise in a pending case under section 307 I.P.C. Complainant and his brothers Ramniwas and Ram Ugrah did not concede to compromise. Therefore, the said accused had feeling of animosity against them and were seeking opportunity to assault them. 9. According to the first information report Exhibit Ka.1 on 1.7.1983 after having taken meal complainant and his brother Ramniwas alongwith cousin Doodnath went to their mango grove at 9.00 P.M. for the purpose of keeping watch and picking mangoes. Due to gale (fast wind) mangoes fell down from trees to a large scale. 9. According to the first information report Exhibit Ka.1 on 1.7.1983 after having taken meal complainant and his brother Ramniwas alongwith cousin Doodnath went to their mango grove at 9.00 P.M. for the purpose of keeping watch and picking mangoes. Due to gale (fast wind) mangoes fell down from trees to a large scale. At about 11 1/2 P.M. they were picking mangoes in the light of torch and lantern. At the same time accused Vishwanath armed with bhujali, accused Vijai Prakash armed with pharsa and accused Rambahal, Gulab, Vishambhar and Vindhyachal armed with lathies came there from the grove of Thakur Prasad Pandey and began to assault Ramniwas brother of complainant with pharasa, bhujali and lathi. On raising alarm witnesses Lalman Pradhan, Ram Poojan Pandey and Lallan Pandey came on spot with lighting torches and challenged the accused. Ramniwas brother of complainant tried to escape but the said accused caused him injuries with bhujali, pharasa and lathi. He fell down. Thereafter they dragged him and brought him beneath mahuwa tree standing in front of their bungla (baithka) and ranaway from spot. 10. Later on leaving the dead-body of his brother Ramniwas on spot, complainant went to Police Station Khajani, District Gorakhpur. On 2.7.1983 at 2.00 P.M. and presented written first information report Exhibit Ka.1 whereupon Crime No.77 of 1983, under sections 147, 148, 149, 302 I.P.C. was registered in Police Station Khajani, District Gorakhpur against accused Rambahal Pandey, Vishwanath, Vijai Prakash, Vindhyachal, Gulab and Vishambhar and investigation was started by the police. Inquest report of deceased Ramniwas was prepared and his dead-body was sent for post-mortem in a sealed cover after having completed necessary formalities. Thereafter police concluded investigation in accordance with law and submitted charge-sheet against accused Rambahal Pandey, Vishwanath, Vijai Prakash, Vindhyachal, Gulab and Vishambhar under sections 147, 148, 149, 302 I.P.C. whereupon learned Magistrate took cognizance and after compliance of Section 207 Cr.P.C. committed the case to the court of session for trial. Thereafter S.T. No. 344 of 1984 (State Vs. Ram Bahal Pandey and others) was registered in session court of district Gorakhpur. Thereafter S.T. No. 344 of 1984 (State Vs. Ram Bahal Pandey and others) was registered in session court of district Gorakhpur. Later on the said session trial was transferred to the court of VIIth Additional Sessions Judge, Gorakhpur, who framed charges against accused Vishwanath and Vijai Prakash under section 148 I.P.C. and section 302 I.P.C. read with section 149 I.P.C. and against accused Rambahal Pandey, Vindhyachal, Gulab and Vishambhar under sections 147 I.P.C. and section 302 I.P.C. read with section 149 I.P.C. 11. All the accused pleaded not guilty and claimed to be tried. 12. Prosecution examined P.W. 1 complainant Kedar Nath Pandey, P.W. 2 Lalman, P.W.3 Head Constable Shiv Poojan Singh, P.W.4 Lallan Pandey, P.W.5 Dr.P.N. Shukla, P.W.6 Inspector Indrajeet Singh and P.W. 7 Constable Ramugrah Singh and closed his evidence. 13. After prosecution evidence statements of accused were recorded under section 313 Cr.P.C. All the accused denied the charges levelled against them and stated that they have been falsely implicated due to animosity. Accused Vijai Prakash stated in his statement under section 313 Cr.P.C. that on 1/2.7.1983 Ramniwas (deceased) and others came to take his buffalo stealthily. He prohibited them whereupon Ramniwas and his persons caused injuries to him and co-accused Vishwanath. He has been medically examined. He further stated in his statement under section 313 Cr.P.C. that he has been falsely implicated and prosecution case has been set up only for defence. In the statement under section 313 Cr.P.C. accused Vishwanath has also made same statement as has been made by co-accused Vijai Prakash. 14. In his statement under section 313 Cr.P.C. accused Gulab has stated that he was in Shah Janwa Jute Mill on the day of occurrence. 15. Accused examined D.W.1 Constable Ram Poojan, D.W.2 Dr.U.N. Pandey, D.W.3 Ram Ashish Tiwari, D.W.4 Kashi Prasad and D.W. 5 Jokhan Mishra to prove defence version. 16. After defence evidence, learned Vth Additional District and Session Judge heard arguments of the parties and passed impugned judgement and order whereby he has convicted accused-appellants Vijai Prakash and Vishwanath for offence punishable under section 302/34 I.P.C. and sentenced thereunder each of them to imprisonment for life. Learned trial court has acquitted remaining accused Rambahal, Gulab, Vishambhar and Vindhyachal from all charges levelled against them. 17. Learned counsel for accused-appellants contended that the judgement and order passed by trial court is against law as well as against evidence on record. 18. Learned trial court has acquitted remaining accused Rambahal, Gulab, Vishambhar and Vindhyachal from all charges levelled against them. 17. Learned counsel for accused-appellants contended that the judgement and order passed by trial court is against law as well as against evidence on record. 18. Learned counsel for accused-appellants contended that first information report Exhibit Ka.1 is ante time and prosecution version is concocted and false. There is manipulation in chik F.I.R. Exhibit Ka.2 regarding time of registration of case. 19. Learned counsel for accused-appellants contended that during intervening night of 1/2.7.1983 at about midnight Ramniwas (now deceased) alongwith Lalman, Ram Chandra son of Devi Prasad and Lallan son of Ram Hazoor was trying to take away buffalo of accused appellants stealthily. Accused-appellant Vishwanath prohibited them from taking away the buffalo but they did not concede and assaulted Vishwanath with lathi, bhala and pharsa and when accused-appellant Vijai Prakash went to save Vishwanath, they assaulted him also. The witnesses Ramsheesh, Rajdev Yadav, Ram Bahadur and Ramratan saw the occurrence and intervened to rescue. In rescue Ram Niwas (deceased) suffered injuries. 20. Learned counsel for accused-appellants contended that co-accused Rambahal presented a written report in Police Station Khajani, District Gorakhpur, but his report was not registered by police. Then he moved an application under section 156(3) Cr.P.C. before court whereupon cross case at Crime No.77-A of 1983, under section 382 I.P.C. was registered in Police Station Khajani, District Gorakhpur against Ramniwas (now deceased), Lalman, Ram Chandra and Lallan. 21. Learned counsel for accused-appellants contended that it is apparent from statement of D.W.2 Dr. U.N. Pandey and injury reports of accused-appellants Exhibits Kha. 4 and Kha 5 as well as from statement of D.W.3 Ram Ashish Tiwari that accused-appellants have suffered injuries at the time of occurrence but no explanation has been given by prosecution to explain the injuries of accused-appellants. 22. Learned counsel for accused-appellants further contended that non-explanation of injuries of accused lead to inference that prosecution is concealing truth and has not presented true fact of occurrence. Therefore, statements of prosecution witnesses may not be relied. 23. Learned counsel for accused-appellants contended that learned trial court has not examined the evidence of parties in accordance with established principles of law and has wrongly placed reliance on statements of prosecution witnesses to convict accused-appellants. 24. Learned counsel for accused-appellants prayed that appeal should be allowed and accused-appellants should be acquitted. 25. 23. Learned counsel for accused-appellants contended that learned trial court has not examined the evidence of parties in accordance with established principles of law and has wrongly placed reliance on statements of prosecution witnesses to convict accused-appellants. 24. Learned counsel for accused-appellants prayed that appeal should be allowed and accused-appellants should be acquitted. 25. Learned counsel for accused-appellants cited following rulings in support of his contentions. 1. State of U.P. Vs. Bhagwant and others in (2003) 10 SCC 74 2. State of Rajasthan Vs. Magni Ram in (2001) 9 SCC 589 3. Toran Singh Vs. State of M.P. in (2002) 6 SCC 494 4.State of M.P. Vs. Mishrilal (dead) and others in (2003) 9 SCC 426 5. Cherlopalli Cheliminabi Saheb and another Vs. State of A.P. in (2003) 2 SCC 571 6. Rizan and another Vs. State of Chhattisgarh through the Chief Secretary, Government of Chhattisgarh, Raipur, Chhattisgarh in (2003) 2 SCC 661 . 26. Learned A.G.A. contended that evidence adduced by prosecution is sufficient to prove accused-appellants guilty of offence punishable under section 302 read with section 34 I.P.C. He further contended that defence has failed to prove that accused-appellants suffered injuries in the occurrence alleged by prosecution. Therefore, prosecution is not under obligation to explain injuries of accused-appellants. 27. He further contended that appeal filed by accused-appellants has no merit and should be dismissed. 28. In revision counsel for complainant revisionist contended that finding of acquittal of opposite parties no.1 to 4 namely Ram Bahal, Gulab, Vishambhar and Vindhyachal recorded by trial court is illegal and perverse. Justice demands interference by revisional court. 29. Counsel for opposite parties contended that the acquittal of opposite parties recorded by trial court is based on consideration of evidence and there is no illegality or infirmity to justify interference by revisional court. 30. We have considered the submissions made by by parties. 30. Out of above 7 witnesses examined by prosecution before trial court P.W.1 Complainant Kedar Nath Pandey, P.W.2 Lalman and P.W.4 Lallan Pandey are the witnesses of fact and occurrence. All of them have supported prosecution version narrated in the first information report. 32. P.W.1 Complainant Kedar Nath Pandey has proved first information report Exhibit Ka.1 also in accordance with law. 33. All of them have supported prosecution version narrated in the first information report. 32. P.W.1 Complainant Kedar Nath Pandey has proved first information report Exhibit Ka.1 also in accordance with law. 33. P.W.3 Head Constable Shiv Poojan Singh has stated in his statement that on 2.7.983 at 6.30 A.M. he sent special report of this crime through Constable C.P.640 Chedi Prasad. He has proved entry of G.D. regarding departure of said constable with special report Exhibit Ka.4 as well as entry of G.D. regarding return of said constable after submitting special report Exhibit Ka.5. 34. P.W.5 Dr. P.N. Shukla is the doctor, who has conducted post-mortem of deceased Ramniwas. He has stated in his statement that on 2.7.1983 at 5.00 P.M. he conducted post-mortem of deceased Ramniwas. The dead-body was brought by Constable Balchand C. P. 907 and Constable Ram Ugrah Singh C.P.668 in a sealed cover. He has proved post-mortem report of deceased Ramniwas Exhibit Ka 6 in his statement in accordance with law. 35. P.W.6 Inspector Indrajeet Singh is the Investigating Officer. He has stated in his statement that after registration of Crime No.77 of 1983, under section 302 I.P.C. he went to spot alongwith police party. He took into possession blood stained earth and plain earth from two places of occurrence and kept them in sealed cover. He has further stated in his statement that a blood stained bhujali was also found near dead-body of Ramniwas. He has proved recovery memo of bhujali Exhibit Ka.7 and memo of blood stained earth and plain earth Exhibit Ka.8 in accordance with law. 36. P.W.6 Inspector Indrajeet Singh has stated in his statement that he has seen the torch and lantern allegedly used by complainant and witnesses and has prepared Fard torch and lantern Exhibit Ka.9. He has also stated in his statement that at 7.00 A.M. he started proceeding of panchanama and prepared inquest report of deceased Ramniwas. In his statement he has proved inquest report Exhibit Ka.13. He has further proved Photo Nash Exhibit Ka 10, Challan Nash Exhibit Ka 11 and letter for post-mortem Exhibit Ka.12. 37. P.W.6 Inspector Indrajeet Singh has stated in his statement that he sent dead-body of Ramniwas through Constables Balchand C.P. 907 and Ram Ugrah Singh C.P.668 for post-mortem in sealed cover. 37. P.W.6 Inspector Indrajeet Singh has further proved site plan of occurrence Exhibit Ka.14. 37. P.W.6 Inspector Indrajeet Singh has stated in his statement that he sent dead-body of Ramniwas through Constables Balchand C.P. 907 and Ram Ugrah Singh C.P.668 for post-mortem in sealed cover. 37. P.W.6 Inspector Indrajeet Singh has further proved site plan of occurrence Exhibit Ka.14. In his statement he has proved copy of G.D. Dated 2.7.1983 Exhibit Ka.15 regarding entry of blood stained earth and plain earth and blood stained bhujali recovered from the spot. He has stated in his statement that on 8.7.1983 he moved an application before the Magistrate for chemical examination of blood stained earth, plain earth and blood stained bhujali with clothes of deceased and sent the said articles to Chief Medical Officer through constable Rama Kant Singh on 15.7.1983. He has proved copy entry of G.D. dated 15.7.1983 Exhibhit Ka.16 also in his statement. He has further stated in his statement that after having completed investigation, he submitted charge-sheet Exhibit Ka.17. 39. P.W. 7 Constable Ramugrah Singh has stated in his statement that on 2.7.1983 he has brought dead-body of Ramniwas in sealed cover to post-mortem house and the dead body remained in sealed cover till it was in his custody. 40. Out of five witnesses examined by defence, D.W.1 Constable 701 Ram Poojan has proved chick report of Crime No.77-A of 1983, under section 382 I.P.C. Exhibit Kha 3 and copy of G.D. regarding registration of said crime Exhibit Kha 4 as secondary witness. 41. D.W.2 Dr. U.N. Pandey has stated in his statement that on 2.7.1983 he was posted as Medical Officer in District Gorakhpur. On that day he examined injuries of accused Vishwanath and Vijai Prakash at 6.30 P.M. and 6.45 P.M. respectively. He has proved injuries of said two accused as well as their injury reports Exhibit Kha 4 and 5 respectively. It is note worthy that Exhibit Kha 4 has been marked twice, once on copy of G.D. relating to registration of Crime No.77-A of 1983, under section 382 I.P.C. and again on injury report of accused Vishwanath. 42. D.W.3 Ram Ashish Tiwari is the witnesses of fact. In his statement on oath he has supported cross version of occurrence alleged by defence. 43. D.W.4 Kashi Prasad was time keeper of Mahavir Jute Mill. 42. D.W.3 Ram Ashish Tiwari is the witnesses of fact. In his statement on oath he has supported cross version of occurrence alleged by defence. 43. D.W.4 Kashi Prasad was time keeper of Mahavir Jute Mill. He has stated that accused Gulab was working as weaver in the said Mill and he was on duty on 1.7.1983 from 11.00 A.M. to 2.00 P.M. and from 5.00 P.M. to 10.00 P.M. D.W.4 has proved copy of attendance register dated 1.7.1983 Exhibit Kha 6 in accordance with law. 44. D.W.5 Jokhan Mishra was clerk of cattle pond. He has stated in his statement that on 2.7.1983 one buffalo and one baby buffalo were entered in his pond by chaukidar as unclaimed. On 11.7.1983 those cattles were get released by Om Prakash son of Ram Bahal. D.W.5 Jokhan Mishra has proved receipt of said cattles as Exhibit Kha.7. 45. After having gone through entire evidence adduced by the parties as well as statements of accused recorded u/s 313 Cr.P.C. it is apparent that occurrence is admitted to both parties. Only point for determination is that as to whether prosecution version of occurrence is proved or the version of defence is probable. 46. In the case of Toran Singh Vs. State of M.P. in (2002) 6 SCC 494 , Hon'ble Apex Court held that " the case of the prosecution should rest on its strength, not on the absence of explanation or plausible defence by the accused." In view of principle laid down by Apex Court it is apparent that initially burden is on the prosecution to prove his case. 47. We have gone through the statements of the witnesses examined by prosecution. As mentioned above out of 7 witnesses examined by prosecution, P.W.1 Complainant Kedar Nath Pandey, P.W.2 Lalman and P.W.4 Lallan Pandey are the witnesses of facts and occurrence. All of them have supported prosecution version narrated in the first information report Exhibit Ka.1. 48. P.W.1 Kedar Nath Pandey is complainant and brother of the deceased Ramniwas. According to the first information report, he has gone with his brother Ramniwas and cousin Doodnath to his grove for the purpose of keeping watch and picking mangoes. P.W.1 Kedar Nath Pandey has supported this version of first information report in his statement on oath. In site plan Exhibit Ka 14 P.W.6 Inspector Indrajeet Singh has shown grove of complainant. According to the first information report, he has gone with his brother Ramniwas and cousin Doodnath to his grove for the purpose of keeping watch and picking mangoes. P.W.1 Kedar Nath Pandey has supported this version of first information report in his statement on oath. In site plan Exhibit Ka 14 P.W.6 Inspector Indrajeet Singh has shown grove of complainant. Therefore, considering the version of first information report as well as statement of P.W.1 complainant Kedar Nath Pandey and site plan Exhibit Ka.14, we are of the view that version of the first information report regarding presence of complainant at the time of occurrence is not concocted and it is true. 49. P.W.2 Lalaman and P.W.4 Lallan Pandey both are named witnesses in the first information report. Perusal of the statements of accused-appellants Vishwanath and Vijai Prakash as well as Exhibit Kha.3 copy of chik F.I.R. of Crime No.77-A of 1983, under section 382 I.P.C. registered on the report of accused Rambahal shows that defence has admitted the presence of P.W.2 Lalaman and P.W.4 Lallan Pandey at the time of occurrence. Therefore, the presence of P.W.2 Lalaman and P.W.4 Lallan Pandey may not be denied. 50. In the case of Sampat 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." 51. In the case of State of U.P. Vs. Krishna Master & others; 2010 Cri. L.J. 3889 (SC), Hon'ble Apex Court 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." 52. Learned counsel for accused appellants could not point out any material contradiction in statements of P.W.1 complainant Kedar Nath Pandey, P.W.2 Lalman and P.W.4 Lallan Pandey. Minor contractions are natural because of manner of expression and quality of memory. 53. Whether the first information report is antetime as contended by counsel for accused-appellants. This question is very important to test credibility of prosecution version. 54. Learned trial court has considered the contentions of defence regarding antetime first information report. Minor contractions are natural because of manner of expression and quality of memory. 53. Whether the first information report is antetime as contended by counsel for accused-appellants. This question is very important to test credibility of prosecution version. 54. Learned trial court has considered the contentions of defence regarding antetime first information report. Learned trial court has mentioned in its impugned judgement that proceeding for panchnama started at 7.00 A.M. and inquest report Exhibit Ka.14 was prepared at 8.00 A.M. on 2.7.1983. Time of report 2.00 A.M. has been mentioned in inquest report. Therefore, trial court is of the view that contention of defence regarding antetime F.I.R. is not acceptable. In this context we have also examined evidence on record. 55. P.W.3 Head Constable Shiv Poojan Singh is the scribe of chik F.I.R. Exhibit Ka.2. He has stated on oath that he prepared chik F.I.R. Exhibit ka 2 on the basis of F.I.R. Exhibit ka.1 submitted by complainant Kedar Nath Pandey on 2.7.1983 at 2.00 A.M. and at the same time he made entry in G.D. regarding registration of crime. He has proved entry of G.D. Exhibit Ka. 3 also. P.W.6 Inspector Indrajeet Singh has stated on oath that this crime was registered in Police Station Khajana, District Gorakhpur in his presence and he reached the spot at 3.00 P.M. Due to insufficient light he started proceeding of panchnama at 7.00 A.M. and completed inquest report Exhibit Ka.13 at 8.30 A.M. Inquest report Exhibit Ka.10 also shows that proceeding of inquest report was started at 7.00 A.M. and was completed at 8.30 A.M. In inquest report Exhibit ka.13 crime no.77 of 1983, under sections 147, 148, 149, 302 I.P.C. has been mentioned and date and time of report has been mentioned 2.7.1983 and 2.00 A.M.. Thus there is sufficient ground to believe that F.I.R. has been lodged on 2.7.1983 at 2.00 A.M. and there is nothing on record to show that F.I.R. is antetime. 56. The statement of P.W.5 Dr. P.N. Shukla as well as post-mortem report Exhibit Ka.6 shows that post-mortem has been conducted on 2.7.1983 at 5.00 P.M. This also corroborates that inquest report has been prepared at the time alleged by P.W.6 Inspector Indrajeet Singh. 57. In view of discussion made above, we are of the view that learned trial court has rightly held that contention regarding antetime F.I.R. is not acceptable. 58. 57. In view of discussion made above, we are of the view that learned trial court has rightly held that contention regarding antetime F.I.R. is not acceptable. 58. In chik F.I.R. in column of date and time of report 2.00 A.M. appears to have been made 7.00 A.M. by overwriting subsequently only to create confusion. Therefore this overwriting should not be given importance. 59. In view of conclusion drawn above, it is apparent that F.I.R. is prompt and has been lodged within two and half hours after of occurrence. Prompt F.I.R. adds credibility of prosecution version and there appears no chance of concoction. 60. According to the first information report Exhibit Ka.1 after having received injuries Ramniwas fell down in grove of Thakur Prasad and thereafter accused dragged him and brought him beneath mahuwa tree standing in front of their bungla (baithka). This version of F.I.R. has been supported by P.W.1 complainant Kedar Nath Pandey, P.W.2 Lalman and P.w.4 Lallan Pandey in their statements on oath. P.W.6 Inspector Indrajeet Singh has stated in his statement on oath that at the place of occurrence he found blood stains at two places. In site plan Exihibt Ka.14 he has shown pool of blood at place B and has shown place of dead body beneath mahuwa tree with mark (X). The statement of I.O. as well as site plan corroborate version of first information report that Ramniwas was caused injuries in grove of Thakur Prasad Pandey where he fell down. Thereafter he was dragged and brought beneath mahuwa tree standing in front of accused-appellants hut. Thus F.I.R. version as well as statements of P.W.1 complainant Kedar Nath Pandey, P.W.2 Lalman and P.w.4 Lallan Pandey are fully corroborated by site plan and statement of I.O. 61. Perusal of statement of P.W.5 Dr. P.N. Shukla as well as post-mortem report of deceased Ramniwas Exhibit Ka.6 shows that following ante mortem injuries have been found on the dead body of deceased Ramniwas. Perusal of statement of P.W.5 Dr. P.N. Shukla as well as post-mortem report of deceased Ramniwas Exhibit Ka.6 shows that following ante mortem injuries have been found on the dead body of deceased Ramniwas. ^^1& dVk gqvk ?kko 4^^ x 4^^ gM~Mh rd xgjk nk;sa duiVh ij uhps dh gM~Mh dk mijh Hkkx dV x;k FkkA 2& dVk gqvk t[e 3^^ x 2^^ gM~Mh rd xgjk ckW;h rjQ flj ds ihNs pksVksa ds uhps fgLls ij flj dh gM~Mh VwV djds vUnj ds rjQ ?kql xbZ FkhA 3& dbZ fu'kku [kjk'k 2^^ x 2^^ dh nk;js esa nksuks i[kkSjksa dh gfM~M;ksa ds chp dh mijh Hkkx ijA 4& dbZ fu'kku [kjk'k 2^^ x 4^^ nkfgus i[kkSM+s ds gM~Mh ds uhps ls 'kq: gksdj iks[k rdA 5& [kjk'k 2^^ x 2^^ dh nk;s ij pwrM+ ij nksuks rjQA 6& [kjk'k 1^^ x 4^^ dh nk;js ij nk;sa oks ck;sa tkW?k ds e/; esa^^ 62. Perusal of antemortem injuries found on the dead-body of deceased Ramniwas shows that injuries no. 1 and 2 are incised wound which may be caused by sharp edged weapon while remaining injuries are abraisons which may be caused by friction of hard object. 63. According to the F.I.R. version accused-appellant Vishwanath caused injures to Ramniwas with bhujali and accused-appellant Vijai Prakash caused injuries to him with pharsa. This version of F.I.R. has been supported by P.W.1 complainant Kedar Nath Pandey, P.W.2 Lalman and P.w.4 Lallan Pandey in their statements on oath. Pharsa and bhujali are sharp edged weapons. Thus injuries no. 1 and 2 of Ramniwas may be caused by pharsa and bhujali. Therefore, medical evidence also corroborates version of prosecution. 64. In F.I.R. motive/cause of occurrence has been alleged that accused-appellants were making pressure on complainant to compromise in a case pending under section 307 I.P.C. but complainant Kedar Nath Pandey and his brothers Ramniwas (now deceased) and Ram Ugrah did not concede to compromise. Therefore accused have animosity with them and were seeking opportunity to assault them. This alleged motive of occurrence has been supported by P.W.1 in his statement on oath and accused-appellants have stated in their statements that they have been falsely implicated due to animosity. Thus evidence on record is sufficient to prove animosity between the parties. Therefore, trial court has rightly held that motive has been fully proved. 65. This alleged motive of occurrence has been supported by P.W.1 in his statement on oath and accused-appellants have stated in their statements that they have been falsely implicated due to animosity. Thus evidence on record is sufficient to prove animosity between the parties. Therefore, trial court has rightly held that motive has been fully proved. 65. Source of light has been mentioned in F.I.R. Exhibit Ka.1 torch and lantern. P.W.1 complainant Kedar Nath Pandey, P.W.2 Lalman and P.W.4 Lallan Pandey have also supported source of light. Investigating Officer P.W.6 Indrajeet Singh has seen lantern and torches of complainant Kedar Nath Pandey and witnesses Lalman and Lallan Pandey and has prepared memo of torches and lantern Exhibit Ka.9. It is apparent from the version of F.I.R. that at the time of occurrence complainant Kedar Nanth Pandey and his brother Ramniwas and cousin Doodnath had gone to their mango grove for the purpose of keeping watch and picking mangoes. Therefore, they must have source of light with them. Therefore considering evidence and circumstances of the case there is no ground to disbelieve source of light alleged by prosecution. 66. P.W.1 complainant Kedar Nath Pandey has stated in his statement that mark of lantern was "sun" while memo of lantern Exhibit Ka.9 shows that mark of lantern was "diwakar". Learned trial court has considered this aspect in his impugned judgement and has come to conclusion that the reasons for this difference is lapse of time and decay of memory. Trial court is of view that at the time of occurrence there was torches and lantern at the place of occurrence, it has been proved. The view expressed by Trial appears just and in accordance with established principles of law. 67. We have also examined cross version put forward by defence as well as evidence adduced by it. 68. D.W.1 Constable Ram Poojan has proved chik F.I.R. of cross case crime no.77-A of 1983, under section 382 I.P.C. Exhibit Kha.3 and copy of G.D. of registration of this crime Exhibit Kha.4. He has admitted in cross examination that final report has been submitted in the said crime no.77-A of 1983. Defence has not filed any evidence or documents to show that final report submitted by police has been rejected by Magistrate or competent court. He has admitted in cross examination that final report has been submitted in the said crime no.77-A of 1983. Defence has not filed any evidence or documents to show that final report submitted by police has been rejected by Magistrate or competent court. Therefore, in view of final report submitted by police it is apparent that cross version put forward by defence has not been found correct in police investigation. 69. D.W. 3 Ram Ashish Tiwari is the witness of occurrence alleged by defence. He has stated in his statement that accused Vijai Prakash is his son in law. He has further stated that on the date of occurrence he has come to meet his daughter. In his statement on oath he has supported cross version put forward by defence and has stated that he has seen the occurrence. He has stated in cross examination made by prosecution that next day of occurrence he went to his house in morning. He did not bring his son in law and his brother to hospital for treatment. He has further stated in his cross examination that he has no knowledge as to whether the dead body of Ramniwas was lying near the bungla of accused-appellants or not. He has further stated in his cross examination that in his presence daroga ji has not come on spot while P.W.6 Inspector Indrajeet Singh has stated on oath that he reached the spot at 3.00 A.M. on 2.7.1983 but started proceeding of panchnama at 7.00 A.M. Perusal of statement of P.W.6 Inspector Indrajeet Singh as well as inquest report Exhibit Ka.13 shows that inquest report was completed at 8.30 A.M. and dead-body of deceased Ramniwas was found beneath mahuwa tree standing in front of bungla (baithka) of accused Rambahal. Site plan Exhibit Ka.14 also shows that dead-body of Ramniwas was found beneath mahuwa tree near bungla of accused-appellants. Thus it is apparent that D.W.3 Ram Ashish Tiwari is not giving true accounts of occurrence. Therefore, considering whole facts and circumstances, we are of the view that D.W.3 Ram Ashish Tiwari is not telling truth and he is a witness interested in accused. 70. D.W. 3 Ram Ashish Tiwari has stated in his examination in chief that he and Mani Ram had lathis and they caused lathi blows to Ramniwas and others. Therefore, considering whole facts and circumstances, we are of the view that D.W.3 Ram Ashish Tiwari is not telling truth and he is a witness interested in accused. 70. D.W. 3 Ram Ashish Tiwari has stated in his examination in chief that he and Mani Ram had lathis and they caused lathi blows to Ramniwas and others. But perusal of post-mortem report of deceased Ramniwas and statement of P.W.5 Dr.P.N. Shukla shows that six ante mortem injuries were found on the dead-body of deceased Ramniwas, out of which injuries no. 1 and 2 are incised wounds. Incised wounds may not be caused by lathi which is blunt object. On this score also the statement of D.W. 3 Ram Ashish Tiwari appears against truth. D.W. 3 Ram Ashish Tiwari has stated in his examination in chief that Ramniwas (deceased) was armed with ballam, Ram Chandra was armed with pharsa, Lallan and Lalman were armed with lathies. Punctured wound may be caused by ballam, but no punctured wound has been found on the bodies of accused appellants as is apparent from their injury reports Exhibit Kha 4 and Kha 5 as well as statement of D.W.2 Dr.U.N. Pandey. 71. D.W.2 Dr. U.N. Pandey has stated that on 2.7.1983 he conducted medical examination of accused Vishwanath and Vijai Prakash at 6.30 P.M. and 6.45 P.M. respectively. He has proved injuries of Vishwanath and Vijai Prakash as well as their injury reports Exhibits Kha.4 and Kha 5 respectively. Time of occurrence is 11 ½ P.M. and medical examination of accused appellants has been done after 19 hours. Both accused appellants did not go to police station also to lodge first information report. No reason for delay in medical examination has been given by defence. D.W.2 Dr.U.N. Pandey has admitted in cross-examination that all injuries of both accused appellants may be self inflicted. Perusal of statement of D.W.2 Dr.U.N. Pandey as well injury reports Exhibits Kha.4 and Kha 5 shows that all injuries of both accused were simple in nature. Thus considering delay in medical examination and nature of injuries of accused-appellants Vishwanath and Vijai Prakash it appears doubtful that accused-appellants had suffered injuries at the time of occurrence. 72. It is also relevant to mention that for the first time application of Rambahal was sent from jail on 8.7.1983 in which cross version of defence has been disclosed. 73. Thus considering delay in medical examination and nature of injuries of accused-appellants Vishwanath and Vijai Prakash it appears doubtful that accused-appellants had suffered injuries at the time of occurrence. 72. It is also relevant to mention that for the first time application of Rambahal was sent from jail on 8.7.1983 in which cross version of defence has been disclosed. 73. Learned trial court has considered the delay in medical examination of accused-appellants as well as delay in submitting report regarding cross version and has drawn conclusion that defence version is not acceptable. Trial court is of view that accused appellants Vishwanath and Vijai Prakash have not suffered injuries at the time of occurrence. Their injuries have been prepared for sake of defence. The view expressed by trial court is based on correct and legal analysis of evidence and circumstances of the case. 74. In view of discussion made above the view expressed by trial court does not appear erroneous. 75. D.W.5 Jokhan Mishra has stated in his statement on oath that on 2.7.1983 one buffalo and one baby buffalo were entered in the cattle pond by chaukidar as unclaimed and those cattles were get released by Om Prakash son of Ram Bahal on 11.7.1983. Entry of buffalo and baby buffalo in the cattle pond on the next day of occurrence as unclaimed also creates doubt on the version of defence because according to defence version occurrence has taken place only for the sake of buffalo. Therefore, it appears quite unnatural that buffalo and baby buffalo shall be left unattended by accused appellants and their family members after occurrence. 76. After having considered whole evidence on record as well as circumstances of the case, we find that version put forward by defence does not appear probable. 77. In the case of Cherlopalli Cheliminabi Saheb and another Vs. Sate of A.P. in (2003) 2 SCC 571 , Hon'ble Apex Court held that "there is an obligation on the part of the prosecution to explain the injuries suffered by the accused in the incident." 78. In the case of State of M.P. Vs. Mishrilal (dead) and others in (2003) 9 SCC 426 , Hon'ble Apex Court relied on his previous judgements rendered in the case of Lakshmi Singh Vs. State of Bihar reported in (1976) 4 SCC 394 as well as in the case of Mohar Rai Vs. In the case of State of M.P. Vs. Mishrilal (dead) and others in (2003) 9 SCC 426 , Hon'ble Apex Court relied on his previous judgements rendered in the case of Lakshmi Singh Vs. State of Bihar reported in (1976) 4 SCC 394 as well as in the case of Mohar Rai Vs. State of Bihar reported in A.I.R. 1968 SC 1281 and was held that "in the face of the defence version, which competes in probability with that of the prosecution case, it was mandatory on the part of the prosecution to have explained the injuries sustained by the accused and non-explanation of the injuries is fatal to the prosecution case." 79. In the case of Rizan and another Vs. State of Chhattisgarh through the Chief Secretary, Government of Chhatisgarh, Raipur, Chhattisgarh in (2003) 2 SCC 661 , Hon'ble Apex Court held that "it cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence." 80. In the case of Krishan and others Vs. State of Haryana, (2006) 12 SCC 459 , Hon'ble Apex Court held that "merely because prosecution has failed to explain injuries on the accused, the same cannot be a solitary ground for doubting the prosecution case". 81. We have carefully considered the principles laid down in above pronouncements. 82. Conclusion drawn above shows that defence has failed to prove that accused-appellants have suffered injuries at the time of occurrence. Therefore, there is no obligation on the prosecution to explain injuries of accused appellants. Therefore, non explanation of injuries of accused appellants shall not cause any adverse effect on the reliability of prosecution. 83. In the case of (2003) 10 SCC 74 State of U.P. Vs. Bhagwant and others there was inconsistency between oral and medical evidence and presence of witness at the time of occurrence was doubtful. Bloodstained earth was not collected from the place of occurrence. Independent witnesses were also available but not examined. In such circumstances, Hon'ble Apex Court held that testimony of interested witness may not be relied. 84. In the case of Kapildeo Mandal and others Vs. Bloodstained earth was not collected from the place of occurrence. Independent witnesses were also available but not examined. In such circumstances, Hon'ble Apex Court held that testimony of interested witness may not be relied. 84. In the case of Kapildeo Mandal and 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." 85. Discussion made above shows that the ocular evidence is corroborated by medical evidence and site plan as well as statement of investigating officer and the presence of witnesses P.W.1 complainant Kedar Nath Pandey, P.W.2 Lalman and P.W.4 Lallan Pandey at the time of occurrence is proved and there is no reasonable ground to disbelieve them. Therefore, statements of these witnesses may not be discarded on the ground of relationship. 86. In (2001) 9 SCC 589 State of Rajasthan Vs. Mangi Ram, Hon'ble Apex Court held that testimony of eyewitnesses were found inconsistent with medical evidence and their conduct also found to be unnatural. In such circumstances Hon'ble Apex court declined to interfere into order of acquittal passed by Rajasthan High Court. On the facts and circumstances of this case accused appellants cannot get benefit of this pronouncement. 87. In the case of Sudershan Reddy and others Vs. State of A.P. (2006) 10 SCC 163 , Hon'ble Apex Court held that "it is settled that even if a major portion of the evidence is found to be deficient, in case the residue is sufficient to prove guilt of an accused, conviction can be maintained. It is the duty of the court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence of some of the witnesses has been found to be deficient." 88. Perusal of post-mortem report of deceased Ramniwas Exhibit Ka.6 as well as statement of P.W.5 Dr.P.N. Shukla shows that six ante mortem injuries were found on the dead-body of deceased Ramniwas, out of which two injuries were incised wounds and four injuries were abrasions. Incised wound may be caused by sharp edged weapon. Abrasions may be caused by friction of hard object. Incised wound may be caused by sharp edged weapon. Abrasions may be caused by friction of hard object. It is apparent from F.I.R. as well as statements of P.W.1 complainant Kedar Nath Pandey, P.W.2 Lalman and P.W.4 Lallan Pandey that accused-appellant Vishwanath was armed with bhujali and accused appellant Vijai Prakash was armed with pharsa. Bhujali and pharsa both are sharp edged weapons, hence two ante mortem incised wounds may be caused by accused appellants. The presence of accused appellants at the time of occurrence has been admitted by defence in cross version and defence has also admitted in cross version that deceased Ramniwas suffered injuries at the time of occurrence. Therefore, considering whole evidence on record as well as circumstances of the case, we are of the view that prosecution has proved its version of occurrence beyond doubt and evidence on record is sufficient to hold that accused Vishwanath and Vijai Prakash caused injuries to deceased Ramniwas with bhujali and pharsa as alleged by prosecution. 89. P.W.5 Dr. P.N. Shukla has stated in his statement that injuries of deceased Ram Niwas were sufficient to cause death in ordinary course and immediate death was possible. 90. Evidence on record as well as circumstances of the case suggest that accused appellants caused injuries to deceased Ram Niwas with bhujali and pharsa in furtherance of common intention of each other. 91. After having considered whole facts and evidence as well as circumstances of the case, we are of the view that offence punishable under section 302 I.P.C. read with Section 34 I.P.C. is fully proved against accused-appellant Vijai Prakash. Therefore, we are of the view that trial court has rightly convicted accused-appellant Vijai Prakash for offence punishable under section 302 I.P.C. read with section 34 I.P.C. 92. The sentence prescribed for offence punishable under section 302 I.P.C. is life imprisonment or death sentence. Therefore, life imprisonment awarded by trial court to accused-appellant for offence punishable under section 302 I.P.C. read with section 34 I.P.C. is not excessive. 93. In view of above, we are of the view that appeal filed by accused-appellant Vijai Prakash has no merit and is liable to be dismissed. 94. According to the prosecution opposite parties no.1 to 4 of present revision namely Ram Bahal Pandey, Gulab, Vishambhar and Vindhyachal were armed with lathies and they caused injuries to Ramniwas (deceased) with lathies, but statement of P.W.5 Dr. 94. According to the prosecution opposite parties no.1 to 4 of present revision namely Ram Bahal Pandey, Gulab, Vishambhar and Vindhyachal were armed with lathies and they caused injuries to Ramniwas (deceased) with lathies, but statement of P.W.5 Dr. P.N. Shukla as well as post-mortem report of deceased Ramniwas Exhibit Ka.6 shows that six ante mortem injuries were found on the dead-body of Ramniwas, out of which two injuries were incised wounds and four injuries were abrasions. Incised wounds may be caused by sharp edged weapons and abrasions may be caused by friction of hard and blunt object. Normally lathi's blow causes contusion or lacerated wound. Four persons are alleged to have used lathis but not a single contusion or lacerated wound has been found on the dead-body of deceased Ramniwas. Therefore, use of lathi to cause abrasions of deceased Ramniwas appears doubtful. Prosecution has specific case that accused dragged Ramniwas when he fell down. Therefore abrasions may be result of friction of earth when he was dragged. 95. When use of lathi in occurrence is doubtful, participation of accused alleged to have used lathies is also doubtful. 96. Learned trial court in its impugned judgement has expressed view that on the basis of evidence available it is difficult to ascertain as to who caused lathi blows. Learned trial court is also of the view that involvement of opposite parties no. 1 to 4 of present revision in the occurrence is doubtful. Therefore trial court gave benefit of doubt to opposite parties no.1 to 4 of present revision namely Ram Bahal Pandey, Gulab, Vishambhar and Vindhyachal and acquitted them. In view of discussion made above, participation of opposite parties no.1 to 4, who has been assigned lathies in occurrence is doubtful. Therefore, trial court has rightly given the benefit of doubt to opposite parties no. 1 to 4. 97. In the case of Raj Kumar Khemka and another Vs. State of Uttar Pradesh and another reported in (2008) 17 SCC 662, Hon'ble Apex Court held that "it is well settled that at the instance of a private prosecutor, the Revisional Court can grant relief only in exceptional circumstances when compelling grounds are made out. 1 to 4. 97. In the case of Raj Kumar Khemka and another Vs. State of Uttar Pradesh and another reported in (2008) 17 SCC 662, Hon'ble Apex Court held that "it is well settled that at the instance of a private prosecutor, the Revisional Court can grant relief only in exceptional circumstances when compelling grounds are made out. The Revisional Court in such a revision has no jurisdiction to reverse the finding of acquittal into that of conviction and it is vested with only power of remand either for retrial or reconsideration as the necessities of the case may require". 98. In view of this pronouncement of the Hon'ble Apex Court, it is apparent that Revisional Court can exercise its jurisdiction against acquittal only in exceptional cases and the discussion made above shows that benefit of doubt given to opposite parties no.1 to 4 by trial court is not perverse. Therefore, we are of the view that interference by Revisional Court in acquittal of opposite parties no.1 to 4 recorded by trial court is not justified and revision is liable to be dismissed. 99. In view of conclusions drawn above, appeal and revision both are dismissed. 100. Appellant Vijai Prakash is on bail. He shall surrender before the trial court for serving sentences within 30 days from the date of judgement of this Court, failing which trial court shall ensure his arrest and shall send him to jail for serving sentence in accordance with law. 101. Office is directed to send copy of judgement to trial court for securing compliance. 102. Return lower records of trial court.