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2014 DIGILAW 866 (ALL)

State of U. P. v. Yogendra and Orther

2014-03-13

KALIMULLAH KHAN, RAKESH TIWARI

body2014
JUDGMENT Kalimullah Khan, J.: - Heard Ms. Usha Kiran, learned A.G.A., for the appellant (State of U.P.), Shri B.S. Khokher, learned counsel for respondent no.1, Yogendra accused, Shri Satish Trivedi, learned Senior Counsel for respondent no.3, Rajendra and respondent no.4, Rajvir, Shri Manoj Kumar, learned counsel for accused respondent Mahipal Singh and perused the record. 2. Respondent no.2, Anil Singh, is reported to be dead, vide Chief Judicial Magistrate's report dated 6.2.2014 and appeal against him has stood abated, vide order dated 10.2.2014. 3. This Government Appeal No.46 of 1985, u/s 378 Cr.P.C. has been filed challenging the impugned judgment and order dated 01.10.1984, passed by learned Sessions Judge, Muzaffarnagar in Sessions Trial No.377 of 1983, State Vs. Yogendra and others, u/s 147, 148, 323/149 and 302/149 IPC, Police Station Budhana, District Muzaffarnagar, whereby he has acquitted all the accused respondents, Yogendra, son of Ilam Singh, Anil son of Jagveer Singh, Rajendra son of Jagat Singh Jat, Rajveer son of Lal Singh and Mahipal son of Atar Singh, all resident of village Tanda Majra, Police Station Budhana, District Muzaffarnagar. 4. First informant, Shri Omprakash son of Dharamveer Singh Jat, r/o of village Tanda Majra, P.S. Budhana, District Muzaffarnagar, lodged a written report (Ex.Ka-4) at police station Budhana, district Muzaffarnagar with an accusation that on 9.4.1983, Ghanshyam Singh of his village was murdered. Jagat Singh lodged the report of that murder case against his brother Satyapal and cousin Baljor Singh, who were in jail in that murder case. Since then, the kinsmen of Ghanshyam and Jagat Singh started bearing grudge against the family of Satyapal, Baljor Singh and the informant. On 29.06.1983, at about 7.00 p.m., Jagdish, aged about 18 years, son of Baljor, along with his sister Beena (P.W.3) and their mother Beermati was returning from his field. When they reached near the well, in front of the house of one Bhopal of his village, respondents accused Anil, Rajendra and Rajveer armed with country made pistols, accused Yogendra and Mahipal armed with lathies caught hold of Jagdish. His sister Beena and mother Beermati tried to save and protect Jagdish, but respondents-accused Yogendra and Mahipal assaulted them with lathies and snatched Jagdish from them. Thereafter, accused Rajveer shot Jagdish with country made pistol. After sustaining the injury, he fell down and died instantly at the spot. Accused Anil and Rajendra also fired from their pistols. His sister Beena and mother Beermati tried to save and protect Jagdish, but respondents-accused Yogendra and Mahipal assaulted them with lathies and snatched Jagdish from them. Thereafter, accused Rajveer shot Jagdish with country made pistol. After sustaining the injury, he fell down and died instantly at the spot. Accused Anil and Rajendra also fired from their pistols. Omprakash (P.W.2), Bina (P.W.3), Dharamveer (P.W.4), Jaideo Singh (P.W.5) and others witnessed the incident. Accused thereafter picked up the dead body of Jagdish (deceased) and ultimately took it to the gher of aforesaid Ghanshyam, where he was dropped. 5. On the basis of the written report, the check report was drawn by the clerk, Constable Rajpal Singh and case was registered in the General-Diary on 29.06.1983, at 20.30 hours at Crime No.80 of 1983, u/s 147, 148, 149, 302 and 323 IPC against the aforesaid accused respondents. 6. S.O., Shri S.K. Sharma, started investigation. He found the dead body of Jagdish (hereinafter called the deceased), lying in the gher of Ghanshyam holding a loaded pistol in his hand with a live cartridge in its barrel. Two empty cartridges were lying towards right side of his body. The trigger of the said country made pistol was out of order. I.O. took the aforesaid arms and ammunition in to police custody, prepared memo (Ex.Ka-12). He recovered blood from the place of incident and also from the place, where the dead body was found. He collected the blood stained and plain earth from both the places, sealed them separately and prepared memos (Ex.Ka-10 & 11, respectively). After preparation of the panchayatnama, the dead body was sent to mortuary through Constable Ram Prakash (P.W.8). The autopsy on the body of deceased was conducted by Dr. R.K. Sharma (P.W.7) on 30.06.1983, at about 1.00 p.m. 7. Following ante-mortem injuries were found by the doctor : - (i) Gunshot wound of entry 3" x 1" x bone deep, on right side of neck, below right ear. (ii) The margins were inverted and blackening and tattooing were present around the wound. (iii) Parietal bone was fractured. (iv) Memberances were lacerated. (v) Brain was lacerated right side base fractured right middle fossa. (vi) 5-6 small pellets recovered from brain base right side. (vii) Vertebrae was fractured and spinal cord was lacerated. (viii) Three ticklies and 42 small metallic pellets were recovered. (iii) Parietal bone was fractured. (iv) Memberances were lacerated. (v) Brain was lacerated right side base fractured right middle fossa. (vi) 5-6 small pellets recovered from brain base right side. (vii) Vertebrae was fractured and spinal cord was lacerated. (viii) Three ticklies and 42 small metallic pellets were recovered. Twenty small metallic pellets were recovered from the region of left shoulder. Oesophagus was lacerated right side. The cause of death was due to shock and hemorrhage as a result of injuries. The age of the deceased was about 18 years and duration of death was about 3/4 days. Since Bina (P.W.3) and Birmati had also sustained injuries during the incident, therefore, they were subjected to medical examination by Dr.R.S. Puri (P.W.1), Medical Officer, P.H.C., Budhana on 29.6.1983, at 11.40 p.m. and 11.50 p.m., respectively. Following injuries were found on the person of Bina, aged about 20 years : - (i) Contusion 7 cm x 2 cm oblique over the back of right forearm, 15 cm below the elbow joint, red in colour with a lacerated wound 1 cm x 1/2 cm x muscle deep over the lateral side of contusion, bleeding present. (ii) Contusion 5 cm x 2 cm oblique over the back of left arm, just above the elbow joint, red in colour. (iii) Contusion 14 cm x 3 cm over the left side of back transverse over and across the middle part of left scapula bone, red in colour. (iv) Contusion 16 cm x 3 cm oblique over the left side of back lower part, 6 cm from the midline, oblique, red in colour, at the level of sacrum. (v) Contusion 10 cm x 3 cm oblique over the right side of back, just above the upper part of right buttock, red in colour. Following injuries were found on the person of Smt.Birmati, aged about 40 years : - (i) Traumatic swelling 2 cm x 2 cm on the front of forehead, middle part, 5 cm above the bridge of nose, red in colour. (ii) Contusion 21 cm x 3.5 cm over the left side of lower part of back touching to midline at the level of upper part of sacrum, transverse, red in colour. (iii) Contusion 12 cm x 3 cm over the left side of back, transverse, 1 cm below injury no.2, 6 cm from the midline, red in colour. 8. (ii) Contusion 21 cm x 3.5 cm over the left side of lower part of back touching to midline at the level of upper part of sacrum, transverse, red in colour. (iii) Contusion 12 cm x 3 cm over the left side of back, transverse, 1 cm below injury no.2, 6 cm from the midline, red in colour. 8. Accused Yogendra and Anil were arrested by the police during the course of investigation while rest of the accused surrendered before the court. 9. After recording the evidence of prosecution witnesses, preparing the site plan and completing the investigation, I.O. submitted charge-sheet (Ex.Ka-14) before the court of C.J.M., Muzaffarnagar against all the accused respondents u/s 147, 148, 149, 302 and 323 IPC. Case being triable exclusively by the court of Sessions was committed to the court of Sessions, vide learned Chief Judicial Magistrate's order dated 03.10.1983. 10. Accused Yogendra and Mahipal were charged by learned trial court u/s 147 IPC. Accused Rajendra, Anil and Rajvir were charged u/s 148 IPC and charges u/s 323/149 IPC and 302/149 IPC were framed against all the five accused respondents, who pleaded not guilty and claimed their trial. 11. In order to prove its case, prosecution examined eight witnesses in all, namely, Dr.R.S.Puri (P.W.1), Omprakash (P.W.2), Bina (P.W.3), Dharamvir Singh (P.W.4), Jaidev Singh (P.W.5), Shri S.K. Sharma, I.O. (P.W.6), Dr. R.K. Sharma (P.W.7) and Ram Prakash (P.W.8). 12. All the accused were examined u/s 313 Cr.P.C. The incriminating evidence occurred against them were put to them for their explanation. They denied the truthfulness of the evidence and attributed their false implication in this case on account of enmity. They were called upon to enter into their defence. They examined Shri Prabodh Kumar Sharma, the record keeper, police office Muzaffarnagar as D.W.1, who deposed on the point of delay in sending the special report of the case. A number of documentary evidence were filed by accused showing long drawn enmity and litigation in between the parties as discussed in detail by the learned trial court in the impugned judgment. 13. A number of documentary evidence were filed by accused showing long drawn enmity and litigation in between the parties as discussed in detail by the learned trial court in the impugned judgment. 13. After hearing learned D.G.C. (Criminal) and learned counsel for the accused and after making appraisal of evidence on record, learned Sessions Judge recorded finding of acquittal of all the five accused respondents from the charges levelled against them mainly on following grounds : - (i) that the motive attributed to the accused was not sufficient for them to commit the murder of Jagdish (deceased); (ii) that it was not a case of cool-calculated and pre-planned murder; (iii) that the medical evidence is inconsistent to the ocular testimony; (iv) that injuries sustained by injured witneses Bina and Birmati could have been caused in a different manner by some of the accused may be in the gher of Ghanshyam; (v) that it was a foolish approach on the part of accused to remove the dead body from the place of incident and put it to the gher of Ghanshyam so as to implicate themselves in this murder case; (vi) that accused could have committed the aforesaid murder at some lonely place but not in the village at 7.00 p.m. on 29.6.1983 in full view of eye witnesses, who saw them taking out the dead body from one place to another up to the gher of Ghanshyam; (vii) that prosecution has not explained the recovery of country made pistol with a live cartridge from the hand of deceased and two empty cartridges lying besides his body and if the prosecution story is taken to be correct that after committing the murder of deceased in front of the house of Bhopal accused took the dead body from one gher to other gher and up to the gher of Ghanshyam then how the country made pistol did not fall in between the place of incident and the place from where the dead body was recovered; and lastly; (viii) that the investigation in the case was not fair. 14. Challenging the impugned judgment and order of the learned trial court, learned A.G.A. has submitted that the evidence of witnesses of fact examined in this case are consistent, cogent, clinching, convincing and wholly reliable, which are fully supported by medical evidence and also by the evidence of each other witnesses of fact. 14. Challenging the impugned judgment and order of the learned trial court, learned A.G.A. has submitted that the evidence of witnesses of fact examined in this case are consistent, cogent, clinching, convincing and wholly reliable, which are fully supported by medical evidence and also by the evidence of each other witnesses of fact. The evidence of Omprakash (P.W.2) is fully corroborated by the contents of the prompt FIR. His evidence is further supported by the testimony of other witnesses. Bina (P.W.3), the real sister of the deceased, is an injured witness, having a number of injuries caused by lathi received during the course of incident is a wholly reliable witness and even the learned trial court has not disbelieved the injuries on her person and still disbelieved her deposition for no good reason. Other witnesses have given an eye account evidence of the incident but the learned trial court ignored it like anything and based his finding on conjecture and surmises. Admittedly, the dead body was recovered from the gher of Ghanshyam and there was none from the side of prosecution near the dead body till the arrival of I.O. at the spot. No panchayatnama was conducted during the whole of the night and it was conducted only in the next morning. There was ample opportunity to accused to plant the country made pistol in the hand of the deceased and to keep two empty cartridges there besides him so as to make out a case of self defence. He has further pointed out that there is an evidence of I.O. that the said country made pistol was defective and inoperative as its trigger was not in order. Moreover, considering the nature of the injuries sustained by the deceased, there is not even a remote chance that country made pistol would be lying in his hand even after his death if at all he was wielding the same. It would be a foolish approach on the part of the deceased to go in the gher of Ghanshyam voluntarily along with such a defective arm and ammunition. There is no evidence adduced by the defence as to what overt act, if any, was done by the deceased there in the gher of Ghanshyam entitling them or to any third person to exercise their right of private defence up to the extent of causing his death. There is no evidence adduced by the defence as to what overt act, if any, was done by the deceased there in the gher of Ghanshyam entitling them or to any third person to exercise their right of private defence up to the extent of causing his death. Had deceased been wielding country made pistol at the initial place of incident in front of the house of Bhopal, it would have fallen in the midst of way up to the gher of Ghanshyam. Under the aforesaid circumstances, plantation of the aforesaid country made pistol and empty cartridges there with the dead body is proved by the circumstances, but the learned trial court did not appreciate the evidence in its true perspective and based its finding on conjecture and surmises excluding the trail of blood of the deceased found from the scene of incident up to the gher of Ghanshyam, therefore, the impugned judgment and order, according to him, deserves to be set aside and accused are liable to be convicted for the murder of Jagdish and causing injuries to Birmati and Bina. Per contra, learned counsel for the accused respondents has submitted that the view taken by learned trial court acquitting the accused is quite possible, therefore, this appellate court need not make any interference with the finding of acquittal recorded in favour of the respondents. Per contra, learned counsel for the accused respondents has submitted that the view taken by learned trial court acquitting the accused is quite possible, therefore, this appellate court need not make any interference with the finding of acquittal recorded in favour of the respondents. Inviting the attention of the Court towards the postmortem report, he submitted that three accused are said to have fired at Jagdish (deceased), but he has received a single firearm wound of entry at his person, therefore, the medical evidence is inconsistent with the prosecution version and the evidence of witnesses of fact; accused respondents had no motive to commit the murder of Jagdish; prosecution has withheld another injured witness Birmati; if the accused has committed the murder in front of the house of Bhopal, there was no need for them to carry the dead body up to the gher of Ghanshyam through the gher of Nahar Singh and Harendra especially when the boundary wall of Nahar Singh is 5 fit to 6 fit in height; the prosecution has improved its case during the course of trial to meet out the inconsistency in between the FIR version and the medical evidence on the point of number of firings and number of injuries sustained by the deceased; and lastly he submitted that Ghanshyam has been murdered wherein the father of the deceased and brother of informant and his cousin are named accused of that murder case, who are in jail, therefore, informant has motive to falsely implicate accused respondents, who are kith and kin to Ghanshyam as it has occurred in the evidence on record. 15. In rebuttal, learned A.G.A. has argued that it is a case of direct evidence and motive does not play any important role but in this case, motive is too strong, which has been fully proved by the prosecution through reliable evidence. 16. The Privy Council had held that in an appeal from acquittal the High Court has full power to review the entire evidence upon which the order of acquittal is founded and then to come to its own conclusion. No limitation can be placed on that power, unless it be found expressly stated in the Code. 16. The Privy Council had held that in an appeal from acquittal the High Court has full power to review the entire evidence upon which the order of acquittal is founded and then to come to its own conclusion. No limitation can be placed on that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusion upon facts, the High Court should and will always give proper weight and consideration to such matters as (1) the view of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. The Supreme Court in Sanwat Singh's case affirmed these principles. In actual application, keeping in consideration these four matters must mean that the High Court should find such reasons which may be termed compelling and substantial reasons or which may be deemed to be clinching and conclusive before it would be justified in upsetting an order of acquittal. It would not be so justified merely because it, after considering the criterion of the Sessions Judge and his views, feels that a different view should be taken for reasons which are not so strong as to be classed into substantial or compelling reasons, which seems to be at par with such reasons against which practically nothing can possibly be said. It has been held that unless the findings of a trial Court are unreasonable and perverse the High Court need not interfere with the order of acquittal. 17. The principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court may be summarised as under: 1. In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction. 2. In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction. 2. The High Court has the power to reconsider the whole issue, reapraise the evidence, and come to its own conclusion and findings in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse. 3. Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal. 4. In reversing the finding of acquittal, the High Court had to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court. 5. If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. 6. The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box. 7. The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused. 8. Unless the High Court arrives at definite conclusion that the findings recorded by trial Court are perverse, it would not substitute its own view on a totally different perspective. 9. The appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 18. 9. The appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 18. The paramount consideration of the Court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial Court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial Court, which may not be disturbed in the appeal, is such a view, which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial Court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding. The High Court would be justified in setting aside the acquittal when it is based upon surmises, conjectures and assumed contradictions. 19. We are of the view that when the acquittal by the trial Court is found on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court's interference would be justified. When the trial Court has overlooked the important aspects of the case and has handled the evidence in a most unreasonable manner and reached the conclusion as it did on unsustainable grounds, the view of evidence taken by the trial Court is manifestly erroneous and reasons assigned are utterly unsustainable. The trial Court's judgment being perverse is liable to be set aside. When the the reasoning is based on surmises and conjectures acquittal can be reversed. The trial Court's judgment being perverse is liable to be set aside. When the the reasoning is based on surmises and conjectures acquittal can be reversed. The jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possible arrived at by any Court acting reasonable and judiciously and is, therefore, liable to be characterised as perverse. When the reasons of Session Judge are perverse and the evidence does not afford scope for two views, the High Court may reverse the order of acquittal. 20. We are of the firm view that where there has been manifest illegality in the approach of the trial Court to the case and appreciation of evidence, the finding recorded by the trial Court is wholly unreasonable and there has been a resultant miscarriage of justice, the reasons given by the trial Court are far too slender for acquitting the accused, the acquittal of the accused recorded by the trial Court would be set aside. 21. Learned trial court has held that the motive alleged by the prosecution is not proved by the evidence on record. There is no evidence that in the case of murder of Ghanshyam wherein the father of the deceased of this case is an accused and is lying in jail, the deceased had played any specific role. Therefore, according to him, accused persons had no motive to commit his murder and to spare rest of his family members. In his opinion, prosecution had motive to falsely implicate accused persons. 22. Learned trial court has recorded the finding that since Baljore, the father of deceased (Jagidsh), is accused in a case of murder and according to prosecution, he has been falsely implicated in the aforesaid murder case and is still in jail, therefore, the kith and kin, relations of Ghanshyam (deceased) had no motive to commit the murder of deceased, the son of aforesaid Baljore. 23. The evidence available on record do not support the aforesaid finding of the learned trial court. 23. The evidence available on record do not support the aforesaid finding of the learned trial court. Be it known that Dharamvir (P.W.4) has clearly, categorically and specifically deposed that Kashi was the ancestor of accused respondents, who had three sons Dayaram, Dataram and Bhagwan. Ghanshyam (deceased) was grand-son of aforesaid Dayaram. Accused Rajendra is the grand-son of Nanak, son of Dayaram. Dataram has two sons Gyanchandra and Lal Singh. Accused respondent Rajvir is the son of this Lal Singh. Other accused Anil, is the grand-son of aforesaid Lal Singh. Accused respondent Yogendra is the grand-son of aforesaid Bhagwana and accused Mahipal is their kinsman and related to their family. Accused Rajendra is the son of Jagat. The FIR of the murder of Ghanshyam was lodged by this Jagat against accused Baljore and satyapal. The present deceased Jagdish is the son of aforesaid Baljore. The aforesaid evidence of Dharamvir (P.W.4) has not been challenged by the accused respondents. Therefore, it is clear that all the accused persons are deeply related by blood with previous deceased, who according to them, was murdered by Baljore and Satyapal, the father and uncle of present deceased, respectively. It has come in the evidence of witnesses that after committing the murder of Jagdish, his body was dragged by the accused respondent from the scene of incident up to the gher of Ghanshyam and it was kept in that gher on the same place where Ghanshyam was murdered. I.O. says that he recovered the dead body of Jagdish from the gher of previous deceased Ghanshyam from where blood stained and plain earth were also recovered and the trail of blood like was found in between the place of actual incident of murder and the place of recovery of dead body in the gher of Ghanshyam. Even the wall of Nahar Singh through which the dead body was carried, contains the blood. Even the wall of Nahar Singh through which the dead body was carried, contains the blood. The recovery of the dead body of Jagdish from the same very place where Ghanshyam was earlier murdered speaks a volume of facts that it was a revengeful murder otherwise there was no need for accused respondents to pick out the dead body from the spot in front of the door of Mahipal to the gher of Ghanshyam through the gher of Nahar Singh and Harendra where the country made pistol along with live and empty cartridges appears to have been planted to give the incident a colour as if deceased Jagdish had gone along with arms and ammunition in the gher of Ghanshyam to commit certain offence where in exercise of right of private defence, he was murdered. The aforesaid fact is falsified from the fatal nature and seat of gun shot injury sustained by deceased Jagdish. As it has been earlier stated in this judgment that he had received gunshot wound of entry 3" x 1" x bone deep, on right side of neck, below right ear causing fracture of parietal bone; fracture and laceration of brain; laceration of memberances; and fracture of vertebrae and laceration of spinal cord. The aforesaid nature and the fatal shot of the injury sustained by Jagdish deceased is sufficient to hold by even an ordinary prudent man that country made pistol could not remain in the hand of deceased after the incident of murder. It is possible only when after his death, aforesaid arms and ammunition were planted in his hand. Since the ocular testimony of P.W.2 P.W.3 and P.W.4 are there on record to the effect that all the accused respondents overpowered Jagdish near the well in the village when he was returning from his field along with his sister and mother, who tried to rescue him from their clutches and the lathi wielders accused Yogendra and Mahipal by making continuous assault on the person of both the ladies snatched the deceased and thereafter accused Rajvir fired with his country made pistol causing the fatal injury to the deceased Jagdish, who fell down and died at spot. Rest two accused Rajendra and Anil had also fired and they continued firing even in the gher of Harendra, Nahar and Ghanshyam. Rest two accused Rajendra and Anil had also fired and they continued firing even in the gher of Harendra, Nahar and Ghanshyam. After committing the murder of Jagdish at spot, these accused persons took the dead body of Jagdish from the spot up to the gher of Ghanshyam. The injury reports of Virmati and Vina which have been proved by the doctor on record are the guarantee of their presence at spot during the incident. Even the learned trial court has not disbelieved the factum of their presence and their sustaining injuries during the incident. Learned trial court has gone to the extent of saying that it may be true that these two ladies might have received injuries even in the gher of Ghanshyam when the incident was committed by some of the accused and scuffle took place in between them. True it is, that the presence of injury on the person of a witness is a guarantee of his presence at spot but there is no guarantee of his veracity but in this case, Vina (P.W.3) has been subjected to cross-examination at length but there is nothing in her evidence to shake her credit. Her evidence is fully supported by her medical evidence and the postmortem examination report. She has fully supported the evidence of informant Omprakash (P.W.2), whose evidence is already supported from the contents of the FIR, which was promptly lodged within 1-1/2 hours from the time of incident after covering a distance of 07 miles from the scene of incident to the police station Budhana, district Muzaffar Nagar.The prompt lodging of FIR, naming the accused with a full detail of the mode and manner of the incident is a guarantee by itself of its truthfulness. There is nothing on record to hold that FIR lodged in this case against accused persons is either ante-timed or belated or manipulated or concocted or fabricated and after thought. The evidence of Dharamvir (P.W.4) is fully in consonance and tune to the evidence of first informant Omprakash (P.W.2) and Smt. Vina (P.W.3). There is no deviation from the case of prosecution initially taken up in the FIR except the explanatory fact. The evidence of Dharamvir (P.W.4) is fully in consonance and tune to the evidence of first informant Omprakash (P.W.2) and Smt. Vina (P.W.3). There is no deviation from the case of prosecution initially taken up in the FIR except the explanatory fact. There is no substance in the contention of learned counsel for the respondents that prosecution improved its case during the trial in as much as that as per the contents of FIR, three persons had fired upon the deceased as a result of which he died at spot but all these three witnesses of fact (P.Ws. 2, 3 and 4) had deposed that, first of all, accused Rajvir shot the deceased dead with his country made pistol and thereafter rest two accused Rajendra and Anil fired with their country made pistols to scare the mob and to frighten them. From the perusal of the contents of FIR, it is clear that Rajvir accused fired with his country made pistol at Jagdish, who sustained injury, as a result of which, he died. Accused Rajendra and Anil had also fired with their country made pistols and on account of all these firings, Jagdish died. The postmortem examination report shows that the cause of death was shock apart from hemorrhage as a result of injuries. No doubt, that shock credited by a number of firings was a contributory factor for causing the death of the deceased. No one can deny that shock may be caused with the noise of firings. Clearly, it has been mentioned in the FIR that Rajvir accused fired at Jagdish, but nowhere, it has been mentioned that Anil and Rajendra had also fired at Jagdish or they also caused the injury with their firearms on the person of Jagdish (deceased). If, informant, Omprakash, clarifies his report in his deposition before the court that whose fires hit the deceased then what is the harm in it and how can it be said that it is improvement in the prosecution story. No doubt, the position would have been different if informant would have written in the report that fires opened by accused Anil and Rajendra hit the body of deceased and caused injury. No doubt, the position would have been different if informant would have written in the report that fires opened by accused Anil and Rajendra hit the body of deceased and caused injury. The perusal of the FIR shows that specific role of firing at the person of Jagdish has been assigned to Rajvir accused alone although role of firing has also been assigned to these two accused Anil and Rajendra. Factum of firing is one thing and causing injury by fire is quite different thing. Therefore, it cannot be said that postmortem examination report is inconsistent with the testimony of P.Ws. 2, 3 and 4 rather their evidence is fully corroborated by the medical evidence and nothing has occurred in their cross-examination to disbelieve their testimony. Moreover, none can deny that when intermittent gun fires by different persons are made in any incident it is very difficult for witnesses to perceive and specify as to whose shot hit the target. But here in the case informant has been very particular in F.I.R. itself in assigning the role against accused Rajveer to cause death of Jagdish by firing with his country made pistol. Since rest two accused also fired with their country made pistols, therefore, informant was bound to mention that fact and which he actually did that due to fires of all there persons Jagdish died. 24. Three accused armed with country made pistols and two accused armed with lathies overpowered the deceased near the well in front of the door of Bhopal when he was returning from his field along with her sister and mother. Is it not sufficient to hold that the incident was pre-planned and cool calculated. Of course, it was. Therefore, the finding of learned trial court that it was not pre-planned and had it been pre-planned, accused would have chosen some lonely place to commit the murder of Jagdish is far fetched imagination. Is it not sufficient to hold that the incident was pre-planned and cool calculated. Of course, it was. Therefore, the finding of learned trial court that it was not pre-planned and had it been pre-planned, accused would have chosen some lonely place to commit the murder of Jagdish is far fetched imagination. As it has already been stated above that it was a case of revenge and vengeance of the murder of Ghanshyam, who was ancestor of these accused, having blood relations and belonging to the same pedigree, they chose to commit this offence of murder of deceased Jagdish in a daredevil manner within the vicinity in view of the villagers including the family members of the deceased to give an impression that they are mighty person and they are powerful to take the revenge in this manner. If the father of deceased Jagdish could commit the murder of Ghanshyam in his gher, then its revenge would be to put the dead body of Jagdish on the same place in the gher of Ghanshyam where he himself was murdered, to satisfy and pacify their heart burning. It appears to be a struggle of dominance (larai of verchasva). Therefore, Baljor who, according to respondents party, had murdered Ghanshyam was to be taught a lesson that in retaliation, his son Jagdish was murdered, therefore, it cannot be said that motive attributed to accused was not sufficient to commit the murder of Jagdish (deceased). It is not hidden mystery that apart from the aforesaid motive, a number of enmity was already existing in between the parties since long as is evident from the perusal of record and moreover, the aforesaid factum of enmity is not disputed by accused. The finding of learned trial court that as to why the accused had chosen to commit the murder in the vicinity of the village and why they took it to the gher of Ghanshyam after crossing the gher of Nahar and Harendra is self explained in itself, as discussed above. Accused had to take the dead body in the gher of Ghanshyam irrespective of the fact that in between, two other ghers were to be crossed. 25. Accused had to take the dead body in the gher of Ghanshyam irrespective of the fact that in between, two other ghers were to be crossed. 25. Likewise, the finding of learned trial court that prosecution has not explained the recovery of country made pistol with a live cartridge from the hand of accused and two empty cartridges lying besides his body, appears to be unwise approach. In the given set of fact, which may click in the brain of even an ordinary prudent man that how the country made pistol may remain in the hand of deceased throughout the way from spot to the gher of Ghanshyam, who has sustained such a fatal gun shot injury noted above. It is clearcut case of plantation of the arm and ammunition in the hand of deceased after his death to give a different colour to the incident. Instead of drawing correct, accurate and natural and plain conclusion, learned trial court wrongly sought for explanation from the prosecution which has rendered the entire judgment impugned a wrong and erroneous judgment which is perverse and deserves to be set aside. 26. Learned trial court has made certain comments upon the conduct of investigating agency. To my mind, he has rightly made such comments. The perusal of the record shows that I.O. has reached the spot in the night itself after lodging the FIR. He went in the gher of Ghanshyam. He noticed the dead body of deceased Jagdish there but did not perform the inquest then and there. He does not say that he saw any country made pistol in the hand of deceased or any empty cartridges lying besides his body meaning thereby this is a fact which could not have over cited by I.O. but nowhere throughout evidence he deposed that when he saw the dead body in the night of the incident there was any country made pistol in the hand of deceased. He gave full time to the accused to plant the same and to take up a case of self defence. He conducted the inquest on the body of deceased in the next morning, therefore, there was ample opportunity available to the defence to plant the same in the hand of deceased and to remove all other empty cartridges and pellets etc. fired by them from the gher of Harendra, Nahar and Ghanshyam. He conducted the inquest on the body of deceased in the next morning, therefore, there was ample opportunity available to the defence to plant the same in the hand of deceased and to remove all other empty cartridges and pellets etc. fired by them from the gher of Harendra, Nahar and Ghanshyam. He recovered the plain and blood stained earth next day from both the spots i.e. from the place of incident of murder and also from the place of recovery of dead body in the gher of Ghanshyam. 27. Undisputedly, the dead body was recovered from the gher of Ghanshyam but none of the accused or anybody else reported the matter to police. Even the family of Ghanshyam especifically his wife or any other member did not lodge the FIR. No evidence is there on record that either the wife of Ghanshyam the alleged sole witness of his murder or any other member of her family was living in gher at the relevant time. If this was the position, it could be well in the knowledge of deceased Jagdish being a next door neighbour and therefore, there was no occasion for him to enter in that gher along with a country made pistol, the trigger of which was not in working condition and no cartridge could be fired with the said recovered pistol. It further suggets that it was nothing but a false plantation to save the skin of the real culprits. 28. Date, time, place, mode, manner of the incident have fully been proved by the prosecution beyond all reasonable doubt and the view taken by learned trail court acquiting the accused is perverse, which was not possible at all. The findings recorded by learned trial court are erroneous and wrong, unreasonable and not possible rather the entire judgment impugned is based on conjecture and surmises. No legal weight to the evidence of reliable eye witnesses have been given by the learned trial court. It is a case where no two views are possible. The only view possible in the light of evidence on record is the view of conviction of accused. No legal weight to the evidence of reliable eye witnesses have been given by the learned trial court. It is a case where no two views are possible. The only view possible in the light of evidence on record is the view of conviction of accused. There has been manifest illegality in the approach of the trial court to the case and appreciation of evidence, the finding recorded by the trial court is wholly unreasonable and there has been a resultant miscarriage of justice, the reasons given by the trial court are far too slender for acquitting the accused, the acquittal of the accused recorded by the trial court deserves to be set aside, therefore, the impugned judgment is liable to be altered and accordingly it is hereby set aside.Govt.Appeal is allowed. 29. All the accused, namely, Yogendra, Anil, Rajendra, Rajvir and Mahipal, are found guilty. Accused Rajvir is convicted u/s 302 IPC and he is sentenced to undergo R.I. for life imprisonment and to pay a fine of Rs.10,000/-. Rest four accused Yogendra, Anil, Rajendra and Mahipal are convicted u/s 302/149 IPC. They are sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/-. In case of default of payment of fine, they are to further undergo a sentence of one year. All the accused are directed to surrender themselves before the court of learned C.J.M., Muzaffar Nagar, within a month. In case, they do not surrender within the aforesaid stipulated period, learned C.J.M., concerned shall commit them to custody and to send them to jail by following the procedure established by law under the intimation to the Registry of this Court. Registry is directed to send a copy of this judgment to learned C.J.M. concerned for speedy compliance.