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2015 DIGILAW 270 (ALL)

JILEDAR v. STATE OF U. P.

2015-02-11

AKHTAR HUSAIN KHAN, AMAR SARAN

body2015
JUDGMENT Hon'ble Amar Saran,J. Hon'ble Akhtar Husain Khan,J. (Delivered by Hon'ble Akhtar Husain Khan,J) Present appeal has been filed by accused appellants Jiledar, Grish Chandra, Ajudhi and Vijai Singh. against judgement and order dated 14.2.1983 passed by Special Judge (E.C. Act)/Additional Sessions Judge, Mainpuri in Session Trial No. 34 of 1982 (State Vs. Jiledar and others) whereby learned Additional Sessions Judge, Mainpuri has convicted accused appellants Jiledar, Grish Chandra, Ajudhi and Vijai Singh for offences punishable under sections 148 IPC, 302 IPC read with section 149 IPC and 307 IPC read with section 149 IPC and has sentenced each of them to rigorous imprisonment for two years for offence under section 148 IPC, to life imprisonment and fine of Rs.1000/- for offence under section 302 IPC read with section 149 IPC and to rigorous imprisonment for ten years for offence under section 307 IPC read with section 149 IPC.. Learned Additional Sessions Judge, Mainpur has directed that all the sentences of accused appellants shall run concurrently and in default of payment of aforesaid fine each accused appellant shall further undergo rigorous imprisonment for six months. Accused appellant Ajudhi has died during pendency of appeal. Appeal stands abated against him. Learned counsel Sri Harish Chandra Tiwari and Sri S.K. Yadav appeared for accused appellants. Sri Rajeev Gupta, learned A.G.A. appeared for State of U.P.. We have heard learned counsel for the parties and have gone through records of the case. In brief, relevant fact for determination of this appeal is that Crime No. 144 under sections 147, 148, 149, 302, 307 IPC was registered in P.S. Karhal District Mainpuri on report of complainant Maharaj Kunwar against Jiledar, Grish Chandra alias Karua, Ajudhi, Bachan Singh, Palan Singh and Vijai Singh on 12.7.1981 at 14 O' clock. According to FIR Ext.Ka.-1 prosecution version is that on 12.7.1981 complainant Maharaj Kunwar, his brother Murari Lal and nephew Manoj Kumar were weeding grass from their maize field taken on batai which is adjacent to the house of accused Jiledar. According to FIR Ext.Ka.-1 prosecution version is that on 12.7.1981 complainant Maharaj Kunwar, his brother Murari Lal and nephew Manoj Kumar were weeding grass from their maize field taken on batai which is adjacent to the house of accused Jiledar. Buffalos of accused Jiledar strayed in their said field whereupon complainant Maharaj Kunwar and his brother Murari Lal and nephew Manoj Kumar called accused Jiledar to carry away his cattle but accused Jiledar refused to carry away his cattle, then complainant and his brother Murari Lal and nephew Manoj Kumar started to drive cattle, whereupon accused Jiledar armed with Tamancha came abusing complainant, his brother and nephew. Having heard noise accused Grish Chandra alias Karua son of accused Jiledar armed with lathi, accused Ajudhi armed with gun, accused Bachan Singh and Palan Singh armed with guns and accused Vijai Singh armed with Katta also came abusing complainant, his brother and nephew and all of them exhorted to kill them. Seeing movement of accused towards them, complainant, his brother Murari Lal and nephew Manoj Kumar started to go in north towards field of Kanhaiya Lal but said accused made fire with guns and tamanchas. In the meantime having heard noise Ajay Kumar, Radhey Shyam, Kamta Prasad, Vindravan, Shyam Singh, Babu Ram, Panna Lal, Ram Kumar and many other villagers came and tried to rescue the complainant as well as his brother and nephew. Lathi blows given by accused caused injuries to Ajay Kumar and Radhey Shyam and fire made by them caused injuries to brother of complainant and Manoj Kumar nephew of complainant. Murari Lal brother of complainant succumbed to injuries on spot. Thereafter accused ran away towards west making threat to kill. According to FIR Ext.Ka-1, time of occurrence is 9.00 a.m.. According to FIR, complainant Maharaj Kunwar went to police station Karhal, District Mainpuri alongwith injured Manoj Kumar, Ajay Kumar and Radhey Shyam by Bullock-cart and presented written first information report Ext.Ka-1 at police station Karhal. After registration of aforesaid crime in P.S. Karhal investigation was started by police. Inquest report of deceased Murari Lal was prepared and dead body was sent for post mortem in sealed cover after having completed necessary formalities. After registration of aforesaid crime in P.S. Karhal investigation was started by police. Inquest report of deceased Murari Lal was prepared and dead body was sent for post mortem in sealed cover after having completed necessary formalities. Injured Manoj Kumar, Ajay Kumar and Radhey Shyam were sent by police for medical examination to P.H.C. Karhal, where medical examinations of injured Radhey Shyam and Ajay Kumar were conducted in P.H.C. Karhal on the same day at 2.30 p.m. and 2.45 p.m. and injured Manoj Kumar was referred to District Hospital, Mainpuri. His medical examination was conducted at District Hospital, Mainpuri on the same day at 5.45 p.m.. Investigation was completed by police in accordance with law and after having completed investigation, police submitted charge sheet against accused appellants Jiledar, Grish Chandra alias Karua, Ajudhi and Vijai Singh alongwith accused Bachan Singh and Palan Singh for offences under sections 147, 148, 149, 302, 307 IPC. Charge sheet had been submitted against accused Palan Singh and Bachan Singh in "mafroori". Magistrate took cognizance on charge sheet submitted by police but summoned accused appellants Jiledar, Grish Chandra, Ajudhi and Vijai Singh only and after compliance of section 207 Cr.P.C. committed the case to the court of Session for trial of accused appellants. Thereafter on the basis of committal order made by Magistrate Session Trial No. 34 of 1982 was registered in Session Court of District Mainpuri. Later on, said Session Trial was transferred to the court of VIIth Additional Sessions Judge, Mainpuri, who framed charges against accused appellants Jiledar, Grish Chandra, Ajudhi and Vijai Singh for offences under section 148 IPC, 302 IPC read with section 149 IPC and section 307 IPC read with section 149 IPC. All the accused pleaded not guilty and claimed to be tried. Prosecution examined P.W.-1 complainant Maharaj Kunwar, P.W.-2 injured Manoj Kumar, P.W.-3 injured Radhey Shyam, P.W.-4 Dr. Surendra Singh, P.W.-5 Dr. S.C. Dubey, P.W.-6 Investigating Officer Yad Ram Verma and P.W.-7 Investigating Officer J.S. Taliyan. Learned Additional Sessions Judge summoned then Dy. S.P. Shil Bhadra Dwivedi and recorded his statement as C.W.-1. Thereafter, statements of all accused were recorded by trial court under section 313 Cr.P.C.. All the accused stated that they have been falsely implicated. No evidence was adduced on behalf of accused appellants in defence. Learned Additional Sessions Judge summoned then Dy. S.P. Shil Bhadra Dwivedi and recorded his statement as C.W.-1. Thereafter, statements of all accused were recorded by trial court under section 313 Cr.P.C.. All the accused stated that they have been falsely implicated. No evidence was adduced on behalf of accused appellants in defence. Learned Special Judge (E.C. Act)/Additional Sessions Judge heard arguments of the parties and passed impugned judgement and order dated 14.2.1983, whereby he has convicted and sentenced accused appellants as mentioned above. Learned counsel for accused appellants contended that FIR is anti time and version of prosecution is false and concocted. Witnesses of occurrence examined by prosecution are interested and inimical witnesses. Medical evidence does not corroborate version of FIR and there is material contradiction in statements of witnesses of occurrence and site plan prepared by I.O. makes place of occurrence doubtful. Learned counsel for accused appellants further contended that statements of P.W.-2 injured Manoj Kumar and P.W.-3 injured Radhey Shyam have been recorded by I.O. under section 161 Cr.P.C. after very long delay and delay in recording statements of these witnesses under section 161 Cr.P.C. makes their credibility doubtful. Learned counsel for accused appellants contended that there is contradiction between FIR version and statements of P.W.-1 complainant Maharaj Kunwar, P.W.-2 injured Manoj Kumar and P.W.-3 injured Radhey Shyam regarding manner of occurrence. Learned counsel for accused appellants further contended that behavior of P.W.-1 Maharaj Kunwar and P.W.-2 injured Manoj Kumar at the time of alleged occurrence appears quite unnatural as they did not try to save deceased Murari Lal by covering him. Learned counsel for accused appellants contended that the story of occurrence narrated by prosecution is false and fabricated. He further contended that it is apparent from statements of prosecution witnesses made in cross examination by defence as well as statement of C.W.-1 Shil Bhadra Dwivedi, Dy. Superintendent of Police and his supervisory report Ext.Ka-1 and Ext.Kha-4 that the occurrence has been committed by "baraties" and fire has been made by them. Learned counsel for accused appellants contended that impugned judgement and order passed by trial court is against evidence as well as law. Learned trial court has not considered evidence on record properly. Learned counsel for accused appellants contended that instrument of weeding grass has not been recovered by I.O. and it makes prosecution story absolutely false. Learned counsel for accused appellants contended that impugned judgement and order passed by trial court is against evidence as well as law. Learned trial court has not considered evidence on record properly. Learned counsel for accused appellants contended that instrument of weeding grass has not been recovered by I.O. and it makes prosecution story absolutely false. Learned counsel for accused appellants contended that mandatory provision of section 313 Cr.P.C. has not been complied by trial court and all incriminating evidence and circumstances have not been put to accused under section 313 Cr.P.C.. Learned counsel for accused appellants prayed that appeal should be allowed and accused appellants should be acquitted. Learned counsel for accused appellants made an alternative submission that on the facts alleged by prosecution no offence is made out under section 302 and 307 IPC.. Learned A.G.A. contended that the judgement and order passed by trial court is based on evidence. He further contended that the evidence on record is sufficient to convict accused appellants for offences punishable under sections 148 IPC, 302 IPC read with section 149 IPC and section 307 IPC read with section 149 IPC. Learned A.G.A. contended that the sentences awarded by trial court are not excessive and there is no sufficient ground for interference in the impugned judgement and order passed by trial court. Learned A.G.A. prayed that appeal should be dismissed. We have considered the contentions made by the parties and have gone through evidence on record carefully. Out of seven witnesses examined by prosecution P.W.-1 complainant Maharaj Kunwar, P.W.-2 injured Manoj Kumar and P.W.-3 injured Radhey Shyam are witnesses of fact and occurrence. In their statements on oath they have supported version of prosecution. P.W.-1 complainant Maharaj Kunwar has stated in his statement on oath that after occurrence the dead body of deceased Murari Lal was kept beneath chhappar of Purushottam Narayan and thereafter he got report Ext.Ka-1 written by Purushottam Narayan and signed it. Thereafter, alongwith injured Ajay Kumar, Manoj Kumar and Radhey Shyam he went to P.S. Karhal and presented the same in police station. He has stated that the medical examination of Ajay Kumar and Radhey Shyam was made in Karhal hospital while Manoj Kumar was sent for medical examination to Mainpuri Hospital because condition of Manoj Kumar was serious. P.W.-4 Dr. Thereafter, alongwith injured Ajay Kumar, Manoj Kumar and Radhey Shyam he went to P.S. Karhal and presented the same in police station. He has stated that the medical examination of Ajay Kumar and Radhey Shyam was made in Karhal hospital while Manoj Kumar was sent for medical examination to Mainpuri Hospital because condition of Manoj Kumar was serious. P.W.-4 Dr. Surendra Singh has stated in his statement on oath that on 13.7.1981 he was posted as Medical Officer in Sadar Hospital, Mainpuri. On that day at 4.30 p.m. he conducted post mortem of dead body of Murari Lal. His dead body was brought by Constables Mawasilal and Ram Das in sealed cover and was identified by them. P.W.-4 Dr. Surendra Singh has proved post mortem report of deceased Murari Lal as Ext.Ka-2. He has stated in his statement on oath that the death of Murari Lal might have been occurred on 12.7.1981 at 9.00 a.m.. He has further stated that ante mortem injuries no. 1 and 2 of deceased Murari Lal might have been caused from back side while he was running forward. He has further stated that injuries no. 3 and 4 of deceased Murari Lal might have been suffered due to falling of deceased. P.W.-5 Dr. S.C. Dubey has stated in his statement on oath that on 12.7.1981 he was posted as Emergency Medical Officer in District Hospital, Mainpuri. On that day at 5.45 p.m. he conducted medical examination of Manoj Kumar P.W.-2 who had been brought by Constable 1530 Izaullah of P.S. Karhal. He has proved injury of P.W.-2 Manoj Kumar as well as his injury report Ext.Ka-3 in his statement. P.W.-5 Dr. S.C. Dubey has stated in his statement on oath that the injury found on the body of Manoj Kumar might have been caused on 12.7.1981 at 9.00 a.m.. P.W.-6 Yad Ram Verma is the second Investigating Officer. He has stated in his statement on oath that in the month of November, 1981 he was Station Officer of P.S. Karhal. He has stated that previous Investigation of this crime had been made by S.I. J.S. Taliyan, who had prepared site plan Ext.Ka-4, inquest report of deceased Murari Lal Ext.Ka-5, Challan nash Ext.Ka-6, Photo nash Ext.Ka-7, Letter to C.M.O. Ext.Ka-8 and Specimen of Seal Ext.Ka.-9. He has stated that previous Investigation of this crime had been made by S.I. J.S. Taliyan, who had prepared site plan Ext.Ka-4, inquest report of deceased Murari Lal Ext.Ka-5, Challan nash Ext.Ka-6, Photo nash Ext.Ka-7, Letter to C.M.O. Ext.Ka-8 and Specimen of Seal Ext.Ka.-9. P.W.-6 I.O. Yad Ram Verma has proved aforesaid site plan Ext.Ka-4, inquest report Ext.Ka-5, Challan nash Ext.Ka-6, Photo nash Ext.Ka-7, Letter to C.M.O. Ext.Ka-8 and Specimen of seal Ext.Ka.-9 as a secondary witness by identifying hand writing and signature of aforesaid S.I. J.S. Taliyan. He has further proved recovery memo of blood stained earth and plain earth Ext.Ka-10 as a secondary witness by identifying hand writing and signature of said S.I.. P.W.-6 I.O. Yad Ram Verma has proved chik FIR Ext.Ka-11 and copy of G.D. relating to registration of crime Ext.Ka-12 also as a secondary witness by identifying hand writing and signature of Head Moharrir Jai Pal Singh. P.W.-6 I.O. Yad Ram Verma has stated in his statement on oath that he has taken investigation into his hands in compliance of order of S.P. Mainpuri. He has proved said order of S.P., Mainpuri as Ext.Ka-14. P.W.-6 I.O. Yad Ram Verma has stated in his statement on oath that he made attempt for the arrest of accused and sent report for process under sections 82 and 83 Cr.P.C. against accused. He has proved said report as Ext.Ka-15. He has further proved his report regarding execution of warrant against accused as Ext.Ka-16 to Ext.Ka-21. P.W.-6 I.O. Yad Ram Verma has stated in his statement on oath that he sent report for proclamation against accused. He has proved said report as Ext.Ka.-22. He has stated in his statement on oath that he executed warrant of attachment against accused Jiledar and Ayudhi. He has proved memo of attachment of said two accused as Ext.Ka-23 and Ext.Ka-24. He has further proved memo of attachement of properties of accused Vijai Singh as Ext.Ka-25 and memo of attachment of properties of accused Bachan Singh and Palan Singh as Ext.Ka-26. P.W.-6 I.O. Yad Ram Verma has stated in his statement on oath that on 10.12.1981 accused Ayudhi, Jiledar, Grish Chandra and Vijai Singh appeared before court, thereafter he submitted charge sheet Ext.Ka-27.. P.W.-7 S.I. J.S. Taliyan is the first Investigating Officer. He has stated in his statement on oath that on 12.7.81 he was posted as S.O. Police station Karhal. P.W.-6 I.O. Yad Ram Verma has stated in his statement on oath that on 10.12.1981 accused Ayudhi, Jiledar, Grish Chandra and Vijai Singh appeared before court, thereafter he submitted charge sheet Ext.Ka-27.. P.W.-7 S.I. J.S. Taliyan is the first Investigating Officer. He has stated in his statement on oath that on 12.7.81 he was posted as S.O. Police station Karhal. He has stated in his statement on oath that first information report Ext.Ka-1 was presented before police station. On the basis of which Head Moharrir Jai Pal Singh wrote chik F.I.R. Ext.Ka-11. He has stated in his statement that chik FIR Ext.Ka-11 contains his signature also. He has further stated that he took investigation into his hands and on 12.7.1981 at 5.00 p.m. he prepared inquest report Ext.Ka-5 of deceased Murari Lal on spot and sent his dead body in sealed cover through Constables Mawasi Lal and Ram Das for post mortem. He has proved challan nash Ext.Ka-6, photo nash Ext.Ka-7, Letter to C.M.O. Ext.Ka-8 and specimen of seal Ext.Ka-9 and has stated that these papers have been written by him in his hand with his signature. P.W.-7 S.I. J.S. Taliyan has stated in his statement on oath that on 12.7.1981 he inspected place of occurrence and prepared site plan Ext.Ka-4 in his own hand writing and with his signature. P.W.-7 S.I. J.S. Taliyan has stated in his statement on oath that he took blood stained earth and plain earth as well as tikuli in his possession from place of occurrence and kept them in sealed cover. He has proved recovery memo of blood stained earth, plain earth and tikuli as Ext.Ka-10. P.W.-7 S.I. J.S. Taliyan has stated in his statement on oath that he recorded statement of complainant Maharaj Kunwar at police station after registration of crime. He has stated that he recorded statements of witnesses later on. P.W.-7 S.I. J.S. Taliyan has stated in his statement that after his transfer from police station Karhal, subsequent investigation after 2.9.1981 was done by other Sub inspector. P.W.-7 S.I. J.S. Taliyan has stated in his statement on oath that in site plan Ext.Ka-4 he has shown maize field of complainant but this field is field of Kanhaiya Lal. He has stated that the field of complainant lies on north of it. P.W.-7 S.I. J.S. Taliyan has stated in his statement on oath that in site plan Ext.Ka-4 he has shown maize field of complainant but this field is field of Kanhaiya Lal. He has stated that the field of complainant lies on north of it. P.W.-7 S.I. J.S. Taliyan has stated in his statement on oath that the field of Swarup Narayan which had been taken by complainant on batai was towards South of the field where dead body was lying. He has further stated that he had found grazen crops of maize in the aforesaid field of Swarup Narayan. Shil Bhadra Dwivedi, the then Deputy Superintendent of Police/C.O. has been summoned by learned trial court and he has been examined as C.W.-1. He has stated in his statement on oath that he had been posted as C.O. Karhal since July 1980 to October 1981. He had proved in his statement his supervisory note i.e. Paper No. 7A/1 of the record of trial court which is dated 3.8.1981. Trial court has marked Ext.Kha-1 on it. In cross examination made by defence he has again proved this report and trial court has marked Ext.Kha-4 again on it. In statement under section 313 Cr.P.C. all the accused have stated that they have been falsely implicated due to enmity. After having gone through entire evidence on record, it is apparent that P.W.-1 Maharaj Kunwar, P.W.-2 injured Manoj Kumar and P.W.-3 injured Radhey Shyam are alleged to be eye witnesses of occurrence. In view of contentions raised by learned counsel for the parties, we have to see as to whether the story of occurrence put forward by prosecution is reliable and P.W.-1 complainant Maharaj Kunwar, P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam are trust worthy witnesses. In this context first of all we have to see as to whether FIR is ante-time. Learned counsel for accused appellants has contended that FIR is ante-time on following grounds:- 1- FIR was not produced before Magistrate forthwith as prescribed by section 157 of Cr.P.C. because C.W.-1 Shil Bhadra Dwivedi has stated that FIR was produced before him on 15.7.1981. 2- In chik FIR Ext.Ka-11 distance of place of occurrence from police station has been written 14 mile whereas in inquest report Ext.Ka-5 the distance of place of occurrence from police station has been written 24 Km.. 2- In chik FIR Ext.Ka-11 distance of place of occurrence from police station has been written 14 mile whereas in inquest report Ext.Ka-5 the distance of place of occurrence from police station has been written 24 Km.. It shows that FIR was not in existence at the time of preparation of inquest report. 3- In challan nash Ext.Ka-6 time of lodging FIR has not been mentioned. Learned counsel for accused appellants has placed reliance upon following pronouncements:- 1- Kunju Mohammad alias Khumaini and another Vs. State of Kerala 2003 S.T.P.L. (L.E.) 34589 S.C.. 2- Bijoy Singh and another Vs. State of Bihar 2003 S.C.C. (Cri.) 1093. 3- Manohar Vs. State 1982 -Laws (All.)-8-39. 4- Shyam Charan and others Vs. State of U.P. 1984 All. L.J. 1303. We have considered the submission made by learned counsel for accused appellants carefully and have perused above pronouncements. In the case of Kunju Mohammad alias Khumaini and another Vs. State of Kerala (supra) as well as in the case of Bijoy Singh and another Vs. State of Bihar (supra) Hon'ble Apex Court has held that delay in sending FIR to Magistrate in terms of section 157 Cr.P.C. without any explanation leads to adverse inference against prosecution. In the case of Satish Narayan Sawant Vs. State of Goa; 2009 Cri.L.J. 4655 (SC) Hon'ble Apex Court has observed as follows:- "From the evidence on record it does not appear to Court that any suggestion was given to the said witness to the effect that the copy of the FIR was not sent or that it was dispatched late, which if given, would have given an opportunity to the witness to afford some explanation or to show as to when the FIR, was sent to and received by the Magistrate. In that view of the matter The Court do not agree with the counsel appearing for the appellant that delay in transmitting the FIR to the Magistrate stands proved in the present case." C.W.-1 Shil Bhadra Dwivedi the then C.O. has stated in his statement in cross-examination made by prosecution that chik FIR Ext.Ka-11 was presented before him on 15.7.1981 and he signed it on same day. On the basis of this statement of C.W.-1 Shil Bhadra Dwivedi defence is claiming that FIR has been sent to Magistrate with delay and section 157 Cr.P.C. has not been complied. On the basis of this statement of C.W.-1 Shil Bhadra Dwivedi defence is claiming that FIR has been sent to Magistrate with delay and section 157 Cr.P.C. has not been complied. C.W.-1 Shil Bhadra Dwivedi was admittedly C.O. of P.S. Karhal at the time of occurrence. He has proved his supervisory report Ext.Kha-1 in his statement on oath. In his supervisory report Ext.Kha-1 C.W. C.O. Shil Bhadra Dwivedi has mentioned that he has inspected the spot and talked with informant and witnesses and came to know that there were strained relation between the deceased and accused for not permitting irrigation on turn. Besides this there was parti-bandi between Yadavas and Brahmins. In supervisory report Ext.Kha-1 he has further mentioned that on the day of incident the party of accused was at the place of Asharfi Lal where the Barat of brother of Ram Dayal Yadav resident of village Nichi Sinaura, Police Station Khairgarh was staying. There were 7 to 8 guns in that Barat and there was old relationship of baraties in that village. Exchange of abuses took place between accused Jiledar and deceased. In the meantime Baraties came with their guns to the place of occurrence and to keep the prestige of their relative fired with their guns causing injuries to Murari Lal and his son. Murari Lal died on spot. Thereafter Baraties ran away. In his supervisory report Ext.Kha-1 C.O. Shil Bhadra Dwivedi has further mentioned that one Barati Ram Lal has been arrested with unlicenced D.B.B.L. Gun in police station Bamahal and Crime No. 83 under section 25 Arms Act has been registered against him there. In report Ext.Kha-1 it has also been mentioned that witnesses of F.I.R. are not independent witnesses and nomination of accused appears to be false. C.W.-1 Shil Bhadra Dwivedi has stated in cross-examination made by prosecution that he has inspected spot on 3.8.1981 as is apparent from his signature. He has stated in cross-examination made by prosecution that chik report Ext.Ka-11 came before him on 15.7.1981 but he visited spot on 3.8.1981. He has not stated any reason as to why he remained idle till 3.8.1981 even after information of this heinous crime. In cross-examination made by prosecution C.W.-1 C.O. Shil Bhadra Dwivedi has stated that parchas of G.D. Dated 12.7.1981 and 23.7.1981 came in his office on 17.8.1981 and he signed those parchas on 24.8.1981. He has not stated any reason as to why he remained idle till 3.8.1981 even after information of this heinous crime. In cross-examination made by prosecution C.W.-1 C.O. Shil Bhadra Dwivedi has stated that parchas of G.D. Dated 12.7.1981 and 23.7.1981 came in his office on 17.8.1981 and he signed those parchas on 24.8.1981. In his supervisory note Ext.Kha-1 C.O. Shil Bhadra Dwivedi has not inquired from I.O. as to why he has not started investigation and recorded statements of witnesses under section 161 Cr.P.C.. and as to why he has not submitted parchas of C.D. before him. In view of above statements of C.W.-1 Shil Bhadra Dwivedi, it is apparent that on 3.8.1981 he went on the spot for the first time without calling for C.D. Of investigation from I.O. and on the same day he drew a conclusion that nomination of accused in FIR is false. Perusal of supervisory note Ext.Kha-1 shows that names of witnesses with whom C.O. talked have not been mentioned. It is also relevant to mention that if the complainant and witnesses were not supporting version of FIR a direction should have been given to I.O. to get recorded statements of complainant and witnesses under section 164 Cr.P.C. before Magistrate but no such direction has been given to I.O. by C.O. in his alleged supervisory report. P.W.-1 complainant Maharaj Kunwar has stated in cross-examination made by defence on page 12 (page 23 of paper book) that Deputy Superintendent Shil Bhadra Dwivedi did never come to his village in his presence and talked him. He has denied suggestion that C.O. Shil Bhadra Dwivedi had gone to his village and inspected spot and talked to him. C.O. Shil Bhadra Dwivedi has not prepared any memo of inspection on spot. In view of discussion made above, considering all facts and circumstances of the case as well as evidence on record, it is apparent that the role played by C.O. Shil Bhadra Dwivedi is highly objectionable and he has tried to save and protect accused named in FIR against law. Instead of proper and expeditious investigation he has tried to withhold and divert investigation to save accused named in FIR. Instead of proper and expeditious investigation he has tried to withhold and divert investigation to save accused named in FIR. Considering attitude and conduct of C.O. it is apparent that cause of delay in sending FIR to Magistrate is to this C.O., therefore, adverse inference may be drawn against prosecution on this ground and accused appellants cannot get benefit of above pronouncements of Hon'ble Apex Court. P.W.-7 I.O. S.I. J.S. Taliyan has been given no suggestion by defence in cross-examination to the effect that FIR was dispatched late from police station. Therefore, in view of principle laid down by Hon'ble Apex Court in the case of Satish Narayan Sawant Vs. State of Goa (supra) we are of the view that there is no sufficient ground to infer that FIR has been dispatched with delay from police station. P.W.-7 S.I. J.S. Taliyan has stated in cross-examination made by defence on page 35 (page 46 of paper book) that he has not mentioned time of lodging report in challan nash ext.Kha-6. He has stated that he had not printed form of challan nash. He himself has prepared form of challan nash. Perusal of challan nash Ext.Ka-6 shows that it is hand written and there is no column in it for time of lodging report. In inquest report Ext. Ka-5 time of lodging report has been mentioned. Therefore, non-mentioning of time of lodging report in challan nash Ext. Ka-6 appears accidental mistake due to ignorance and no adverse inference may be drawn against prosecution on this ground. In chik FIR Ext.Ka-11 distance of place of occurrence from police station has been written 14 mile whereas this distance has been written in inquest report Ext.Ka-5 24 km. In the case of Manohar Vs. State (supra) Division Bench of this court has held that FIR was not in existence at the time of preparation of inquest report on the ground that there was difference between FIR and inquest report regarding distance of place of occurrence from police station. Same view has been expressed by Division Bench of this High Court in the case of Shyam Charan and others Vs. State of U.P.. But in the case of Tunda Vs. State of U.P., 1990 Cr.L.J. 868, Division Bench of this High Court has held that discrepancy as to distance of police station from the place of occurrence between inquest report and FIR is not material. State of U.P.. But in the case of Tunda Vs. State of U.P., 1990 Cr.L.J. 868, Division Bench of this High Court has held that discrepancy as to distance of police station from the place of occurrence between inquest report and FIR is not material. As mentioned above, distance has been written in chik FIR in miles whereas distance has been written in inquest report in kilometers. P.W.-7 S.I. J.S. Taliyan has stated in cross-examination made by defence on page 35 (page 46 of paper book) that he has written estimated distance in inquest report after consulting villagers. He has further stated that due to rainy season and water logging way to place of occurrence was not direct. Considering whole facts and circumstances, we are of the view that difference in distance mentioned in aforesaid two papers is due to mistake in conversion of mile into Kilometer. Therefore, no adverse inference should be made on this ground against prosecution. Time of occurrence is alleged 9 A.M. on 12.7.1981. Chik FIR Ext.Ka-11 and G.D. relating to registration of crime Ext.Ka-12 proved by P.W.-6 I.O. Yad Ram Verma show that FIR has been lodged in police station Karhal on 12.7.1981 at 2 P.M. Distance of place of occurrence from police station is 14 miles as mentioned in chik FIR Ext.Ka-11. P.W.-1 complainant Maharaj Kunwar has stated in his statement that after occurrence he got FIR written by Purshottam Narayan and went to P.S. Karhal alongwith Ajai Kumar, Manoj Kumar and Radhey Shyam. Medical examination of Ajai Kumar and Radhey Shyam was done in Karhal Hospital but condition of Manoj Kumar was serious, he was sent to Mainpuri Hospital. Medical report of Manoj Kumar Ext.Ka-3 proved by P.W.-5 Dr. S.C. Dubey as well as statement of P.W.-05 Dr. S.C. Dubey shows that medical examination of Manoj Kumar has been conducted on 12.7.1981 at 5.45 P.M. at Mainpuri Hospital and he had been brought by Constable 1530 Ijaullah of P.S. Karhal for medical examination. Preparation of inquest report Ext.Ka-5 has been started on 12.7.1981 at 5 P.M. and has been completed at 7 P.M. as is apparent from inquest report Ext. Ka-5. In inquest report time of lodging report has been mentioned 2 P.M. on 12.7.1981. Annexure-2 of inquest report is copy of FIR. P.W.-4 Dr. Preparation of inquest report Ext.Ka-5 has been started on 12.7.1981 at 5 P.M. and has been completed at 7 P.M. as is apparent from inquest report Ext. Ka-5. In inquest report time of lodging report has been mentioned 2 P.M. on 12.7.1981. Annexure-2 of inquest report is copy of FIR. P.W.-4 Dr. Surendar Singh who has conducted post mortem of deceased Murari Lal has stated in his statement on oath that paper of police station were produced with dead body. Defence has not cross-examined him on the point of production of copy of FIR and has not given him suggestion to the effect that copy of FIR was not produced before him. After having gone through whole evidence on record as well as facts and circumstances of the case in view of discussion made above, we are of the view that there is no sufficient ground to hold FIR as ante-timed. Admittedly statements of P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam under section 161 Cr.P.C. have not been recorded by I.O. on first day. Statement of Manoj Kumar has been recorded by second I.O. P.W.-6 S.I. Yad Ram Verma who took investigation in his hand in compliance of order of S.P., Mainpuri dated 14.10.1981. Statement of P.W.-3 Radhey Shyam has been recorded by first I.O. P.W.-7 S.I. J.S. Taliyan on 2.9.1981. Due to delay in recording statements of said two witnesses under section 161 Cr.P.C. learned counsel for accused appellants has challenged reliability of statements of said witnesses. He has placed reliance upon following pronouncements:- 1- Maranti Ram Naik Vs. State of Maharashtra; 2004 S.C.C.(Cri) 958. 2- Bijoy Singh and another Vs. State of Bihar; 2003 S.C.C. (Cri) 1093. 3- State of U.P. Vs. Bhagwan; 1997 S.C.C. (Cri) 1179. 4- Manohar Vs. State; 1983 A.C.C. 20-64. In the case of Sidharth Vashisht alias Manu Sharma Vs. State (N.C.T. of Delhi); AIR 2010 S.C. 2352 , Hon'ble Apex Court has observed as follows:- "It cannot be said that the testimony of the witness should be thrown out for the delay in recording the statement by the Police. In any case, any defect by delay in examination of witnesses in the manner of investigation cannot be a ground to condemn the witness. Further Section 162 Cr.P.C. is very clear that it is not mandatory for the police to record every statement. In any case, any defect by delay in examination of witnesses in the manner of investigation cannot be a ground to condemn the witness. Further Section 162 Cr.P.C. is very clear that it is not mandatory for the police to record every statement. In other words, law contemplates a situation where there might be witnesses who depose in Court but whose previous statements have not been recorded." In the case of Krishna Pal Vs. State of U.P.; AIR 1996 S.C. 733 , Hon'ble Apex Court has held that," the delay in examination of witnesses does not in all cases affect the value of such witnesses if they are otherwise reliable." It is apparent from statement of P.W.-1 complainant Maharaj Kunwar that he went to police station Karhal alongwith injured P.W.-2 Manoj Kumar, P.W.-3 Radhey Shyam and Ajai Kumar to lodge FIR and said three injured were sent to P.H.C. Karhal by police for medical examination where medical examination of Radhey Shyam and Ajai Kumar was made but P.W.-2 Manoj Kumar was referred to Mainpuri Hospital as his condition was serious. Medical report of Manoj Kumar Ext.Ka-3 as well as statement of P.W.-5 Dr. S.C. Dubey shows that medical examination of Manoj Kumar was made on 12.7.1981 at 5.45 P.M. in Mainpuri Hospital. Injury report Ext.Ka-3 as well as statement of P.W.-5 Dr. S.C. Dubey shows that Manoj Kumar had gun shot injuries on vital part of body. In view of above facts, we are of the view that there is sufficient ground for not recording statement of P.W.-2 Manoj Kumar under section 161 Cr.P.C. at the time of registration of crime and in view of discussion made and conclusion drawn above, it is apparent that C.O. C.W.-1 Shil Bhadra Dwivedi who was supervising officer of investigation was trying to delay investigation and to save accused named in FIR. In such circumstances, delay in recording statements of witnesses under section 161 Cr.P.C. cannot adversely affect the value of statements of these witnesses. In the case of Dharmveer and others Vs. State of U.P., AIR 2010 S.C. 1378 Hon'ble Apex Court has held that," witness did not suffer injury will not make his evidence untrustworthy." In view of above pronouncement of Hon'ble Apex Court statement of P.W.-1, complainant Maharaj Kunwar may not be discarded merely on the ground that he has not suffered injuries in the occurrence. State of U.P., AIR 2010 S.C. 1378 Hon'ble Apex Court has held that," witness did not suffer injury will not make his evidence untrustworthy." In view of above pronouncement of Hon'ble Apex Court statement of P.W.-1, complainant Maharaj Kunwar may not be discarded merely on the ground that he has not suffered injuries in the occurrence. In the case of Dharmveer and others Vs. State of U.P. (supra) Hon'ble Apex Court has further held that the evidence of an eye witness cannot be rejected only on the ground that enmity exists between the parties or witnesses are related with deceased. P.W.-1 complainant Maharaj Kunwar is brother of deceased and P.W.-2 injured Manoj Kumar is son of deceased and according to defence P.W.-1 complainant Maharaj Kunwar, P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam had enmity with accused. But in view of above pronouncement of Hon'ble Apex Court the testimonies of these three witnesses cannot be rejected on the ground of relationship with deceased or enmity with accused. In the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri 2012 (IV) SCC 124 , Hon'ble Apex Court has 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." In the case of State of U.P. Vs. M.K. Anthony AIR 1985 S.C. 48 , Hon'ble Apex Court has held that,"every honest and truthful witnesses may differ in some details unrelated to main incident because power of observation, retention and reproduction differ with individuals." In the case of Faquira Vs. State of U.P., AIR 1976 S.C. 915 , Hon'ble Apex Court has held that,"minor discrepancy guarantees that witnesses are not tutored." In the case of State of U.P. Vs. Krishna Master and others; 2010 Cr.L.J. 3889 (SC), Hon'ble Apex Court has held that,"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." In the case of State of U.P. Vs. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof." In the case of State of U.P. Vs. Krishna Master and others (supra), Hon'ble Apex Court has further held that,"the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole." We have gone through whole statements of P.W.-1 complainant Maharaj Kunwar, P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam. In FIR Ext.Ka-1 it has been mentioned that seeing movements of accused towards them complainant, his brother Murari Lal and nephew Manoj Kumar started to go in north towards field of Kanhaiya Lal but said accused made fire with guns and tamanchas. In the meantime having heard noise Ajai Kumar, Radhey Shyam, Kamta Prasad, Vindravan, Shyam Singh, Babu Ram, Panna Lal, Ram Kumar and many other villagers came and tried to rescue the complainant as well as his brother and nephew. Lathi blows given by accused caused injuries to Ajai Kumar and Radhey Shyam and fire made by them caused injuries to brother of complainant and nephew Manoj Kumar. In statements on oath before trial court P.W.-1 complainant Maharaj Kunwar has stated that when Ajai Kumar and Radhey Shyam attempted to conciliate, accused Grish alias Karua gave them lathi blows, whereupon they kept themselves away. Thereafter accused Jiledar, Ajudhi, Palan Singh, Vijai Singh and Bachan Singh fired with guns and kattas causing injuries to Murari Lal and Manoj Kumar. Murari Lal died on spot in the field of Kanhaiya Lal. P.W.-2 Manoj Kumar has also stated in his statement on oath that Ajai Kumar and Radhey Shyam tried to conciliate, accused Grish alias Karua gave them lathi blows, whereupon they kept themselves away. Thereafter, P.W.-2 Manoj Kumar, his father Murari Lal and P.W.-1 complainant Maharaj Kunwar started to go towards field of Kanhaiya Lal. In the meantime accused made fires causing injuries to him and his father Murari Lal deceased. P.W.-3 Radhey Shyam has also given similar statements regarding occurrence as has been stated by P.W.-1 complainant Maharaj Kunwar and P.W.-2 Manoj Kumar. Thereafter, P.W.-2 Manoj Kumar, his father Murari Lal and P.W.-1 complainant Maharaj Kunwar started to go towards field of Kanhaiya Lal. In the meantime accused made fires causing injuries to him and his father Murari Lal deceased. P.W.-3 Radhey Shyam has also given similar statements regarding occurrence as has been stated by P.W.-1 complainant Maharaj Kunwar and P.W.-2 Manoj Kumar. After having gone through FIR Ext.Ka-1 and statements of P.W.-1 complainant Maharaj Kunwar, P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam, we are of the view that there is no contradiction between version of FIR and statements of said three witnesses. In FIR Ext.Ka-1 it has been mentioned that accused Jiledar armed with Tamancha came abusing complainant, his brother Murari Lal and his nephew Manoj Kumar. Having heard noise accused Grish Kumar alias Karua son of accused Jiledar armed with lathi, accused Ajudhi armed with gun, accused Bachan Singh and Palan Singh armed with guns and accused Vijai Singh armed with katta also came abusing complainant and his brother and nephew. In FIR Ext.Ka-1 it has been alleged that lathi's blow given by accused caused injuries to Ajai Kumar and Radhey Shyam and fire made by them caused injuries to Murari Lal and Manoj Kumar. Murari Lal died on spot. In FIR it has not been mentioned that lathi's blows were made after firing or during firing. There is no contradiction between FIR Ext.Ka-1 and statements of said three witnesses regarding genesis of occurrence, participation of accused, weapons used and role assigned to accused. It is not necessary to state in FIR the minute to minute details of occurrence. P.W.-1 complainant Maharaj Kunwar, P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam are eye witnesses of occurrence. They have given detailed description of occurrence seen by them in statements on oath before court and their statements are fully in consonance with FIR Ext.Ka-1. Complainant P.W.-1 Maharaj Kunwar is brother of deceased Murari Lal and P.W.-2 Manoj Kumar is his son. Presence of these witnesses alongwith deceased Murari Lal in weeding of grass appears quite natural. P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam are injured also. Considering all facts and circumstances, we are of the view that there is no reasonable ground to disbelieve presence of these witnesses at the time and place of occurrence. Presence of these witnesses alongwith deceased Murari Lal in weeding of grass appears quite natural. P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam are injured also. Considering all facts and circumstances, we are of the view that there is no reasonable ground to disbelieve presence of these witnesses at the time and place of occurrence. We have gone through whole statements of P.W.-1 Maharaj Kunwar, P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam, we are unable to find material contradiction in their statements to disbelieve them. It is apparent from version of fist information report Ext.Ka-1 as well as statements of P.W.-1 Maharaj Kunwar, P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam that when they began to run away towards field of Kanhaiya Lal in north, accused made fire on them. Post mortem report Ext.Ka-2 as well as statement of P.W.-4 Dr. Surendra Singh shows that two ante mortem gun shot entry wounds have been found on the back portion of deceased Murari Lal. Injury report of P.W.-2 Manoj Kumar Ext.Ka-3 as well as statement of P.W.-5 Dr. S.C. Dubey shows that P.W-2 Manoj Kumar had fire arm injuries on frontal part of body as well as on back portion of body. Injuries found on back portion of bodies of deceased Murari Lal and injured P.W.-2 Manoj Kumar corroborate the version of FIR Ext.Ka-1 and statements of said three witnesses of occurrence on the fact that deceased Murari Lal and P.W.-2 Manoj Kumar has been caused fire arm injuries from back side when they were trying to run away to save them. After receiving injury of back side P.W.-2 Manoj Kumar might take turn towards accused. In such situation he might have received injury on frontal part. Post mortem of deceased Murari Lal has been conducted on 13.7.1981 at 4.30 P.M. Post mortem report as well as statement of P.W.-4 Dr. Surendra Singh corroborates the time of death of deceased Murari Lal alleged by prosecution. Injury report of P.W.-2 Manoj Kumar Ext.Ka-3 as well as statement of P.W.-5 Dr. S.C. Dubey corroborates the facts that his injuries have been caused at the time of occurrence alleged by prosecution. P.W.-1 complainant Maharaj Kunwar has stated in cross-examination at page 11 (page 22 of paper book) that fires were made on Murari Lal from distance of 15 or 16 steps. In this context learned counsel for accused appellants has contended that P.W.-4 Dr. P.W.-1 complainant Maharaj Kunwar has stated in cross-examination at page 11 (page 22 of paper book) that fires were made on Murari Lal from distance of 15 or 16 steps. In this context learned counsel for accused appellants has contended that P.W.-4 Dr. Surendra Singh has stated in cross-examination at page 25 (page 36 of paper book) that injury no.1 of deceased Murari Lal might have been caused from a distance within six feet. Therefore, medical evidence is inconsistent with ocular evidence. We have considered the contention of learned counsel for accused appellants. P.W.-1 Maharaj Kunwar has stated aforesaid estimated distance. Said distance may not be accurate. Dimension of injury no.2 of deceased Murari Lal shows that this injury might have caused with fire made from a distance of 15 or 16 steps. From facts mentioned above, it is apparent that accused made fire when deceased was running away to save himself. Therefore, distance of assailants may differ at the time of different firing and post mortem report Ext.Ka-2 as well as statement of P.W.-4 Dr. Surendra Singh corroborates this fact. Dimension of injuries of P.W.-2 Manoj Kumar also corroborates the distance of place of firing stated by P.W.-1 Manoj Kumar. In view of discussion made above, we are of the view that medical evidence fully corroborates ocular evidence and it is incorrect to say that medical evidence is inconsistent with ocular evidence. Ante mortem injuries of deceased and injuries of P.W.-2 Manoj Kumar are evidence of fact that injuries of both are result of at least four fires. Number of accused having guns and tamanchas is five. Bit it is not necessary that fire made by everyone shall touch destination. Therefore, medical evidence cannot be said to be inconsistent with ocular evidence on this score also. In FIR Ext.Ka.-1 it has been mentioned that seeing movement of accused Murari Lal, complainant Maharaj Kunwar and Manoj Kumar started to go in north towards field of Kanhaiya Lal. In the meantime accused made fire with their guns and tamanchas. P.W.-1 complainant Maharaj Kunwar has given same statement in his statement on oath and has specifically stated that after having received fire arm injury Murari Lal died in the field of Kanhaiya Lal. In the meantime accused made fire with their guns and tamanchas. P.W.-1 complainant Maharaj Kunwar has given same statement in his statement on oath and has specifically stated that after having received fire arm injury Murari Lal died in the field of Kanhaiya Lal. He has further stated in cross-examination made by defence on page 11 (page 22 of paper book) that in the field of Kanhaiya Lal where Murari Lal fell down, blood was there. P.W.-2 injured Manoj Kumar has also stated in his statement on oath that they were running towards field of Kanhaiya Lal when accused fired with their guns and kattas. But in site plan Ext.Ka-4 proved by P.W.-7 S.I. J.S. Taliyan, the place where the dead body of Murari Lal was alleged to have been lying, has been shown with letter 'A' and this place 'A' has been shown in the maize field of complainant Maharaj Kunwar. On this ground learned counsel for accused appellants has contended before us that the site plan is against version of FIR as well as statements of P.W.-1 complainant Maharaj Kunwar and P.W.-2 Manoj Kumar. We have considered this contention of learned counsel for accused appellants carefully. P.W.-7 S.I. J.S. Taliyan, who has prepared site plan has stated in his statement on oath that in site plan Ext.Ka-4 he has shown filed of occurrence as field of complainant but it was the field of Kanhaiya Lal and field of complainant lies to the north of this field. He has stated that due to mistake he has written this field, field of complainant. He has further stated in his statement on oath that there was field of Swarup Narayan which the complainant had taken on batai and this field of Swarup Narayan was towards south of the field where dead body was lying. P.W.-1 complainant Maharaj Kunwar has stated in his statement on oath that at the time of occurrence he was weeding grass in the field of Swarup Narayan which he has taken on batai. P.W.-2 injured Manoj Kumar has stated in cross-examination at page 15 (page 26 of paper book) that there is a chak-road towards north of this field where they were weeding grass and after chak of Kanhaiya Lal towards north, there is field of Murari Lal. P.W.-2 injured Manoj Kumar has stated in cross-examination at page 15 (page 26 of paper book) that there is a chak-road towards north of this field where they were weeding grass and after chak of Kanhaiya Lal towards north, there is field of Murari Lal. Perusal of site plan Ext.Ka-4 shows that I.O. has shown field of Swarup Narayan and in the north of this field of Swarup Narayan he has shown chak-road. Thereafter he has shown the field of occurrence as field of complainant and to the north of this field he has shown field of Murari Lal. As mentioned above P.W.-7 I.O. S.I. J.S. Taliyan has stated that the field of occurrence is the field of Kanhaiya Lal and he has written it field of complainant due to mistake. Perusal of statement of I.O. P.W.-7 S.I. J.S. Taliyan as well as recovery memo of blood stained earth Ext.Ka-10 shows that I.O. has taken blood stained earth from place 'A' shown in the site plan. The topography of place of occurrence is fully proved by statements of P.W.-1 Maharaj Kunwar, P.W.-2 Manoj Kumar, P.W.-3 Radhey Shyam and P.W.-7 S.I. J.S. Taliyan and it is apparent from the statement of P.W.-7 S.I. J.S. Taliyan that the field of occurrence is the field of Kanhaiya Lal and he had written it the field of complainant due to mistake only. In site plan Ext.Ka-4 I. O. P.W.-7 J.S. Taliyan has shown with letter 'A' the place where dead body of deceased Murari Lal was alleged to have been lying. Perusal of inquest report Ext.Ka-5 shows that at the time of visit of I.O. to place of occurrence dead body of deceased Murari Lal was lying towards West from house of Purushottam Narayan beneath Chhappar. In FIR Ext.Ka-1 also complainant has mentioned that he has kept the dead body of his brother Murari Lal in front of the house of Purushottam Narayan. In view of discussion made above, we are of the view that site plan Ext.Ka-4 is not in consistent with version of FIR as well as statements of witnesses P.W.-1 complainant Maharaj Kunwar, P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam. P.W.-7 S.I. J.S. Taliyan has stated in his statement on oath that at the time of visit of place of occurrence he has seen maize field damaged by cattles but he has not shown it in site plan. P.W.-7 S.I. J.S. Taliyan has stated in his statement on oath that at the time of visit of place of occurrence he has seen maize field damaged by cattles but he has not shown it in site plan. P.W.-1 complainant Maharaj Kunwar has stated in cross-examination made by defence on page 10 (page 21 of paper book) that Murari Lal has come to field for weeding with Khurpi. P.W.-2 Manoj Kumar has stated in his statement on oath in cross-examination on page 17 (page 28 of paper book) that they have left their Khurpies in the field but I.O. P.W.-7 S.I. J.S. Taliyan has not taken Khurpies in his possession and has not prepared any fard of the same. On this ground learned counsel for accused appellants has contended before us that place of occurrence is doubtful because no Khurpies has been found there. Learned counsel for accused appellants has placed reliance on the pronouncement of Hon'ble Apex Court rendered in the case of Buddh Singh and others Vs. State of U.P.; 2006 (3) S.C.C. (crl.) 377. In the case of Buddh Singh and others Vs. State of U.P. (supra) Hon'ble Apex Court has drawn adverse inference against prosecution on the ground that no agricultural implement, such as spade etc. was found at the place of occurrence and has upheld the view expressed by trial court. We have considered the contention raised by learned counsel for accused appellants. Perusal of whole statement of P.W.-7 S.I. J.S. Taliyan shows that defence has not cross examined him on the point of Khurpies and defence has not dare to clarify from P.W.-7 S.I. J.S. Taliyan as to whether he found Khurpies in the field of maize. Defence has not afforded him opportunity to explain the situation on this point. Therefore, considering the facts and circumstances of the case as well as entire evidence on record, we are of the view that no adverse inference should be drawn against prosecution for not taking Khurpies by I.O. Besides this, it is relevant to mention that Khurpies have not been alleged to have been used as weapon in the occurrence. Khurpies are only corroborative evidence and when witnesses of occurrence are found reliable and trust-worthy, the prosecution case may not be discarded merely because of corroborative evidence. Khurpies are only corroborative evidence and when witnesses of occurrence are found reliable and trust-worthy, the prosecution case may not be discarded merely because of corroborative evidence. In cross-examination defence has given suggestion to P.W.-1 complainant Maharaj Kunwar that he was not present at the place of occurrence. P.W.-1 Maharaj Kunwar has negatived this suggestion. In cross-examination defence has given suggestion to P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam to the effect that a quarrel took place with baraties in which Ajai Kumar and Radhey Shyam suffered injuries and when Marari Lal (deceased) and P.W.-2 Manoj Kumar went in support of Ajai Kumar and Radhey Shyam, baraties fired at them. Both P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam have negatived suggestion of defence and there is no evidence on record to support this version of defence. Supervisory report of C.W.-1 C.O. Shil Bhadra Dwivedi Ext.Kha-1 is not a substantive evidence and it does not contain names of witnesses with whom C.O. Shil Bhadra Dwivedi has talked. In view of discussion made and conclusion drawn above, it is apperent that said report has been prepared by C.O. only for the purpose of saving accused named in FIR against provisions of Cr.P.C. and this report has no evidentiary value. In statements under section 313 Cr.P.C. accused appellants have not stated version of occurrence put forward by defence in cross-examination of prosecution witnesses and have adduced no evidence in support of it. There is no evidence to show that gun recovered by police station Bamahal from a person alleged to be baratee is related with this crime and has been used in this crime. In view of discussion made above, we are of the view that version of occurrence put forward by defence is not acceptable. According to FIR Ext. Ka-1 P.W.-1 complainant Maharaj Kunwar, P.W.-2 Manoj Kumar and deceased Murari Lal were weeding grass in the maize field of Batai. In statement on oath P.W.-1 complainant Maharaj Kunwar has stated that he was weeding grass in the field of Swarup Narayan which he has taken on Batai. P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam have also stated on oath that the said field was taken on Batai. There is no reasonable ground to disbelieve statements of said witnesses. In statement on oath P.W.-1 complainant Maharaj Kunwar has stated that he was weeding grass in the field of Swarup Narayan which he has taken on Batai. P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam have also stated on oath that the said field was taken on Batai. There is no reasonable ground to disbelieve statements of said witnesses. Considering version of FIR Ext.Ka-1 and statements of above three witnesses, we are of the view that taking field of Swarup Narayan on Batai by complainant and deceased has been fully proved. In view of discussion made and conclusions drawn above after having gone through entire evidence on record as well as facts and circumstances of the case, we are of the view that story of occurrence put forward by prosecution is reliable and P.W.-1 complainant Maharaj Kunwar, P.W.-2 injured Manoj Kumar and P.W.-3 injured Radhey Shyam are trust-worthy witnesses. There is no reasonable ground to disbelieve them. In the case of Narpal Singh Vs. State of Haryana; 1977 Cr.L.J. - 642 S.C. At page 649, Hon'ble Apex Court has held that if witnesses examined are believed the question of inference for non-examination does not arise. In view of above pronouncement of Hon'ble Apex Court no adverse inference may be drawn for non-examination of other witnesses. Perusal of statements of accused appellants recorded under section 313 Cr.P.C. show that incriminating evidence and circumstances have been put to accused appellants. Learned counsel for accused appellants has failed to show as to how prejudice has been caused to accused appellants by defective recording of statement under section 313 Cr.P.C.. In the case of Parasu Ram Pandey Vs. State of Bihar; AIR 2044 S.C. Page 5068, Hon'ble Apex Court has held that no prejudice of accused has been shown, accused cannot get benefit of defective recording of statement under section 313 Cr.P.C.. In view of discussion made and conclusion drawn above, we are of the view that learned trial court has rightly placed reliance on statements of P.W.-1 complainant Maharaj Kunwar, P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam and has rightly accepted version of prosecution. In view of discussion made and conclusion drawn above, we are of the view that learned trial court has rightly placed reliance on statements of P.W.-1 complainant Maharaj Kunwar, P.W.-2 Manoj Kumar and P.W.-3 Radhey Shyam and has rightly accepted version of prosecution. It is apparent from version of FIR as well as statements of P.W.-1 complainant Maharaj Kunwar, P.W.-2 injured Manoj Kumar and P.W.-3 injured Radhey Shyam that quarrel started between the parties regarding cattles causing damage to maize field of complainant, whereupon accused Grish alias Karua armed with lathi, accused Jiledar armed with tamancha, accused Ajudhi armed with gun, accused Bachan Singh armed with gun, accused Palan Singh armed with gun and accused Vijai Singh armed with katta came on spot and after having committed occurrence they have run away from place of occurrence together. In view of facts and evidence mentioned above it has been fully established that all the six accused named in FIR formed an unlawful assembly with common object of using force or violence in which accused appellant Jiledar was armed with Tamancha, accused appellant Grish Chandra was armed with lathi, accused appellant Vijai Singh was armed with Katta, deceased accused appellant Ajudhi was armed with gun and absconder accused Bachan Singh and Palan Singh were armed with guns. Fire arms have been used for causing injuries to Murari Lal (deceased) and Manoj Kumar in prosecution of common object of unlawful assembly and injuries intended to be inflicted by fire arms are on vital part of bodies of deceased Murari Lal and Manoj Kumar. Injuries inflicted to deceased Murari Lal are sufficient in ordinary course to cause his death. The case is fully covered with secondly and thirdly both of sections 300 I.P.C.. In the case of Ramesh and others Vs. State of Haryana with three other connected cases; AIR 2011 Supreme Court 169, Hon'ble Apex Court has held as follows:- "9. We do not find any substance in the submission of the learned counsel. In our opinion the common object of an unlawful assembly has to be gathered from the nature of the assembly, arms possessed by them and the behaviour of the assembly at or before the occurrence. It is an inference which has to be deduced from the facts and circumstances of each case. In our opinion the common object of an unlawful assembly has to be gathered from the nature of the assembly, arms possessed by them and the behaviour of the assembly at or before the occurrence. It is an inference which has to be deduced from the facts and circumstances of each case. To attract the mischief of Section 149 of the Indian Penal Code, it is not necessary that each of the accused must commit some illegal overt act. When the assembly is found to be unlawful and if offence is committed by any member of the unlawful assembly in prosecution of the common object, every member of the unlawful assembly shall be guilty of the offence committed by another member of the assembly. It has to be borne in mind that an assembly which is not unlawful when assembled may subsequently become an unlawful assembly. In the present case there is overwhelming material to show that the appellants variously armed, including the fire arms assembled at one place and thereafter came to the place of occurrence and started assault together and when protested by the deceased, one of the members of the unlawful assembly shot him dead and some of them caused injury by fire arm, gandasa, lathi, etc. to others. All of them have come and left the place of occurrence together. From what has been found above, there is no escape from the conclusion that appellants were the members of the unlawful assembly and offences have been committed in pursuance of the common object and hence, each of them shall be liable for the offence committed by any other member of the assembly. In our opinion, the trial court correctly held them guilty with the aid of Section 149 of the Indian Penal Code, which has rightly been affirmed in appeal by the High Court." In the aforesaid pronouncement Hon'ble Apex Court has relied on its earlier judgment rendered in case of Chandra Bihari Gautam and others vs. State of Bihar, (2002) 9 SCC 208 , in which Hon'ble Apex Court has held as follows : "8. Section 149 has two parts. Section 149 has two parts. First part deals with the commission of an offence by a member of an unlawful assembly in prosecution of the common object of that assembly and the second part deals with the liability of the members of the unlawful assembly who knew that an offence was likely to be committed in prosecution of the object for which they had assembled. Even if the common object of the unlawful assembly is stated to be apprehending Nawlesh Singh only, the fact that the accused persons had attacked the house of the complainant at the dead of night and were armed with deadly weapons including the guns, and used petrol bombs, proves beyond doubt that they knew that in prosecution of the alleged initial common object, murders were likely to be committed. The knowledge of the consequential action in furtherance of the initial common object is sufficient to attract the applicability of Section 149 for holding the members of the unlawful assembly guilty for the commission of the offence by any member of such assembly. ........." Learned counsel for accused appellants has contended before us that the facts alleged by prosecution show that occurrence has taken place on a sudden fight without premeditation. The case is covered with exception 4 of section 300 IPC., therefore conviction of accused appellants under section 302 IPC read with section 149 IPC is against evidence and law. Learned counsel for accused appellants placed reliance upon pronoucement of Hon'ble Apex Court rendered in the case of Abdul Majid Vs. State of Assam reported in A.I.R. 1994 S.C. 1487. We have considered the submission made by learned counsel for accused appellants. The facts mentioned above show that case is not covered with exception 4 of section 300 I.P.C. as accused appellants alongwith other co-accused formed an unlawful assembly with a common object and the firing has been made on deceased Murari Lal and injured Manoj Kumar in prosecution of common object of said unlawful assembly when both deceased Murari Lal and Manoj Kumar were trying to run away to save themselves. It is apparent in view of discussion made above that the case is fully covered with secondly and thirdly of section 300 I.P.C. On the facts and circumstances of this case, principle laid down by Hon'ble Apex Court in the case of Ramesh and others Vs. State of Haryana (supra) is fully applicable. It is apparent in view of discussion made above that the case is fully covered with secondly and thirdly of section 300 I.P.C. On the facts and circumstances of this case, principle laid down by Hon'ble Apex Court in the case of Ramesh and others Vs. State of Haryana (supra) is fully applicable. In view of discussion made and conclusions drawn above after having gone through whole facts and circumstances of the case as well as evidence on record, we are of the view that evidence on record is sufficient to convict accused appellant Grish Chandra alias Karua for offences under section 147 I.P.C., 302 I.P.C. read with section 149 I.P.C. and section 307 I.P.C. read with section 149 I.P.C. In view of above conviction of accused appellant Grish Chandra alias Karua recorded by trial court for offence under section 148 IPC is modified into section 147 IPC.. In view of discussion made and conclusion drawn above after having gone through whole facts and circumstances of the case as well as evidence on record. We are of the view that conviction of accused appellants Jiledar and Vijai Singh recorded by trial court for offences under section 148 IPC, 302 IPC read with section 149 IPC and section 307 IPC read with section 149 IPC is in accordance with evidence and law. Sentences awarded by trial court are not excessive and no state appeal has been filed for enhancement of sentence. In view of conclusion drawn above, we are of the view that appeal filed by accused appellants Jiledar, Grish Chandra alias Karua and Vijai Singh has no merit except to modify conviction of accused appellant Grish Chandra alias Karua recorded under section 148 IPC into section 147 IPC.. Appeal filed on behalf of accused appellants Jiledar and Vijai Singh is dismissed. Appeal filed on behalf of accused appellant Grish Chandra alias Karua is allowed partly only to the extent that conviction and sentence recorded under section 148 IPC is modified into section 147 IPC. Rest part of conviction and sentence recorded by trial court against accused appellant Grish Chandra alias Karua shall remain intact. Accused appellants Jiledar, Grish Chandra alias Karua and Vijai Singh are on bail. Rest part of conviction and sentence recorded by trial court against accused appellant Grish Chandra alias Karua shall remain intact. Accused appellants Jiledar, Grish Chandra alias Karua and Vijai Singh are on bail. They shall surrender before trial court within one month from the date of this judgement for serving sentence awarded to them, failing which trial court shall ensure their arrest and shall send them jail for serving sentence. Records of trial court shall be returned back to Chief Judicial Magistrate, Mainpuri immediately so that Chief Judicial Magistrate may proceed against co-accused Bachan Singh and Palan Singh who have escaped trial even after submission of charge sheet against them by police. Let a copy of this judgement be sent to trial court as well as Chief Judicial Magistrate, Mainpuri for securing compliance. Le a copy of this judgement alongwith judgement of trial court be sent to Principal Secretary (Home), U.P. Government, Lucknow for taking action against the then C.O. Shil Bhadra Dwivedi as directed by trial court. ——————