JUDGMENT : (Per Raghvendra Kumar, J.) 1. Heard learned counsel for the appellant, learned A.G.A. for the state of U.P. and perused the record. 2. This Criminal Jail appeal has been preferred on behalf of the accused appellant Lal Singh against the judgment and order dated 4.8.1984 passed by learned Additional Sessions Judge, Hamirpur in S.T.No. 314 of 1982 under section 302 I.P.C., P.S. Kurara, District Hamirpur in Case Crime No. 130 of 1982 District Hamirpur whereby the accused Lal Singh has been convicted for the offence under section 302 I.P.C. and sentenced with imprisonment for life. 3. The F.I.R.of this case has been lodged on 11.8.1982 at 5.30 P.M. with respect to the incident that took place on 11.8.1982 at 14 hours. According to the prosecution case, the complainant Shiv Dayal P.W.1 and accused Lal Singh both are residents of the same Village. The brother of the deceased had taken loan of Rs. 5/- from the accused Lal Singh, for which he made demand from the deceased Gariba, brother of the informant. He refunded the amount and said that your father had taken four mund of jundi four years back which he has not returned till date whereupon the accused Lal Singh kicked his brother Gariba who said that he was going to lodge the F.I.R. at the police station and he left the village for lodging the F.I.R. and as he reached near the Junior High School, the accused Lal Singh appeared equipped with Pharsa and started assaulting the deceased by Pharsa blows and said , "I will not leave you today." Gariba fell down. The Complainant Shiv Dayal and his son Vishwanath, Ram Sanehi and other villagers reached to the place of assault. The accused Lal Singh fled away from the spot. The deceased Gariba was taken to the police station on a bullock cart, as he reached near village Jhalokhar, he succumbed to the injuries. 4. After lodging of the F.I.R., the inquest was performed and after observing certain formalities and documentation the body was sent for post-morem examination. The Investigating Officer inspected the spot and prepared the site plan. He examined the witnesses and submitted the charge sheet after conclusion of the investigation. 5. 4. After lodging of the F.I.R., the inquest was performed and after observing certain formalities and documentation the body was sent for post-morem examination. The Investigating Officer inspected the spot and prepared the site plan. He examined the witnesses and submitted the charge sheet after conclusion of the investigation. 5. After complying the procedure contemplated under law, the learned Trial Court framed the charge against the accused Lal Singh for the offence under section 302 I.P.C. The accused denied the charge and claimed trial on merit. 6. The accused has denied entire defence case and taken plea of false implication. He has claimed himself to be an innocent. The son-in-law of the deceased has murdered the deceased Gariba since he was having apprehension of not getting the landed property of the deceased. 7. To substantiate the charges against the accused-appellant the prosecution has examined P.W.1 Shiv Dayal and P.W.2 Ram Sanehi. Both are witnesses of fact. P.W.1 has proved execution of Tahriri report (written) Ext. Ka-1. 8. P.W.3 Dr. R.S.Kushwaha has conducted post-mortem examination and prepared autopsy report and has noted the following ante mortem injuries:- (i) Incised wound 8 c.m. x 2 c.m. x 6 cm on outer side and back of left upper arm 11 c.m. above left elbow running side to side and slightly obliquely towards posterior side and cutting humerus bone almost at middle. (ii) Incised wound 8 c.m. x 3 c.m. x 4 c.m. on the back of left forearm running side to side and tailing obliquely running towards ulna cutting both the bones at their upper part 1 cm below left elbow. (iii) Incised wound 8.5 c.m. x 1 ½ c.m. x 5 c.m. on the back from third thoracic spine running upwards and obliquely in left suprascapular region tailing upwards cutting muscles and deeper tissues and transverse process of 3rd thoracic spine. (iv) Incised wound 13 c.m. x 2 ½ c.m. x 5 cm on the lower back 8 cm about right sacro iliac joint obliquely running towards left side of iliac crest cutting muscles and deeper tissues, transverse process of 4th lumber vertebrae and iliac bone at posterior medial quadrant. (v) Incised wound 14 c.m. x 2 ½ c.m. x 5 c.m. on the lower back just below injury no. (v) Incised wound 14 c.m. x 2 ½ c.m. x 5 c.m. on the lower back just below injury no. 4, .6 c.m. medial to highest point of right iliac crest running obliquely downwards towards left gluteal region cutting muscles and deeper tissues and 5th lumber vertebrae at its transverse process right iliac crest and sacroiliac joint right side. On internal examination, Scalp, Skull,Membrances,brain, base, the Doctor has noted N.A.D.(Nothing Abnormal Detected)Vertebrae-ante mortem injury noted on the post motem examination report Ext. Ka 3. Spinal Cord-Not exposed.Special remark- Nil. In Thorax region, Walls, ribs, cartilages - ante mortem injuries as per post mortem examination report. Pleura, Larynx, Lungs, Pericardium, the doctor has noted N.A.D. Heart - Right half full and left empty vessels- N.A.D.Additional Remarks Nil. Abdomen - Walls, Peritoneum, Cavity- N.A.D.Buccal Cavity, Pharynx, Oesophagus, all have been noted N.A.D. except Teeth 12/13. Small intestine- digested food material and gases. Large intestine - Faecal matter and gases. Gall Bladder N.A.D. Pancreas, Spleen, Kidneys both- N.A.D.Bladder Full. The cause of death has been assigned due to shock and haemorrhage as a result of ante mortem injuries. Duration of death has been mentioned by the doctor about one day old. 9. The post mortem has been conducted on 12.8.1982 at 11.00 A.M. The blood stained bandi, dhoti and earth were sent for chemical examination. The report of Serologist has been received in the Court. The Bandi & Dhoti were found blood stained with human blood. Blood was also found on the Article no. 3. 10. The incriminating material which appeared during course of trial was put to the appellant. The accused appellant has admitted that he was resident of village Patara, Police Station Kurara, district Hamirpur. The accused denied the prosecution evidence which appeared against him during course of the trial. He has disclaimed knowledge about the chick F.I.R. and the relevant entry in G.D. He has also disclaimed knowledge about the documents prepared during the course of investigation and submission of charge sheet as well. The accused also disclaimed knowledge about post-mortem examination report, chemical examination report and Serologist report. He has denied that he has absconded after the incident. He has not assigned any reason why the witnesses have deposed against him. The appellant has further submitted that there was a proceeding under section 107/117 Cr.P.C. between him and Man Singh. The accused also disclaimed knowledge about post-mortem examination report, chemical examination report and Serologist report. He has denied that he has absconded after the incident. He has not assigned any reason why the witnesses have deposed against him. The appellant has further submitted that there was a proceeding under section 107/117 Cr.P.C. between him and Man Singh. Shiv Dayal is residing in the house of Man Singh, Gariba has adopted the son of Shiv Dayal. The son-in-law of Gariba was having enmity, on this score he has committed the offence, there after he has absconded. 11. After conclusion of trial the learned Trial Court recorded the findings of conviction by above impugned judgment and order. Feeling aggrieved thereby the instant appeal is before us. 12. It has been submitted on behalf of the defence that Tahriri report/FIR is suspicious and different version has come up about writing of Ext. Ka-1. There was no motive or enmity for committing the murder of Gariba ( the deceased) by accused -appellant. The offence has been committed by son-in-law of Gariba, who was aspiring to get the property from him since he was having no son. The deceased had taken the son of the first informant P.W.1 in adoption. The son-in-law of the deceased felt annoyed and he has committed the murder and thereafter absconded. 13. Hon.ble the Apex court has been pleased to lay down the guidelines for High Court for exercising Appellate jurisdiction in criminal side in the cases of Padam Singh Vs. State of U.P. reported in 2000 (1) SCC 621 , Rama & others Vs. State of Rajasthan reported in 2002 ( 4) SCC 571, Majjal Vs. State of Haryana 2013 ( 6) SCC 698 and Kamlesh Prabhudas Tanna and Anr Vs. State of Gujarat reported in 2014 Cr.L.J. 443. 14. It can safely be discerned from the above propositions of law that while deciding the appeal, the High Court is expected to re-appraise the evidence critically available on record and to draw the inference. The Court while exercising the appellate jurisdiction is not expected to be influenced by the finding of acquittal or conviction recorded by the learned Court below keeping in view the presumption of innocence of the accused until otherwise is established from the record. In this backdrop the evidence available on record is being appreciated. 15. The Court while exercising the appellate jurisdiction is not expected to be influenced by the finding of acquittal or conviction recorded by the learned Court below keeping in view the presumption of innocence of the accused until otherwise is established from the record. In this backdrop the evidence available on record is being appreciated. 15. P.W.1 has stated that while he was taking his brother on a bullock cart and as he reached near Village Jhalokhar his brother succumbed to the injuries on the way. He has specifically stated that he disclosed the incident to one Devi Deen at village Jhalokhar,who inscribed the report. After hearing the written report, he put his thumb impression subsequently. The witness in the later part of the cross-examination stated about putting of his thumb impression on written report Ext. Ka-1 at the police station. He further said that he narrated the incident to Diwan ji ( Head Constable), who got it inscribed by one Devi Deen thereafter he put his thumb impression. 16. P.W.2 has stated that FIR was got inscribed by P.W.1 Shiv Dayal through Devi Deen at village Jhalokha. It has been submitted on behalf of the defence/appellant that P.W.1 and P.W.2 are inter-se related. Their testimony should not be attributed much importance and no inference should be drawn on their testimony. So far appraisal of evidence of related witness is concerned, the matter has time and again, been considered by the Hon'ble Apex Court in the cases of Shiv Ram and Anr. Vs. State of U.P. reported in (1998)1 SCC 149 , Kuria and Anr. Vs. State of Rajasthan reported in ( 2012) 10 SCC 433 , Gurjit Singh vs. State of Haryana reported in ( 2015) 4 SCC 380 and Veer Singh Vs. State of U.P. reported in (2014) 2 SCC 455 . 17. In view of the propositions of law cited above, the legal position emerges that on the score of the witnesses being related inter se, would not be the sole ground for discarding their testimony. But in such circumstances, heavy duty is cast upon the Court to scrutinize their testimony with utmost care and caution. 18. Admittedly, P.W.1 is the brother of the deceased Gariba, P.W.2 Ram Sanehi, as submitted by appellant's Counsel, is also relative. But in such circumstances, heavy duty is cast upon the Court to scrutinize their testimony with utmost care and caution. 18. Admittedly, P.W.1 is the brother of the deceased Gariba, P.W.2 Ram Sanehi, as submitted by appellant's Counsel, is also relative. This fact and circumstances cannot be avoided that in the event of murder of real brother of the informant/complainant P.W.1, it can never be said that P.W.1 would remain unaffected or he would not undergo any mental or psychological trauma. Psychology is bound to have been affected, the witness is bound to have been disturbed. Even for the argument's sake, if it is presumed that there is variance in the statement of P.W.1 in his examination-in-chief and cross- examination as well as statement of P.W.2. It is established from the record that Devi Deen has inscribed the FIR. So far as inscribing of the FIR by Devi Deen is concerned, there is complete consistency in the testimony of P.W.1 and P.W.2 at all places wherever this fact appeared. From the statement of P.W.1 in paragraph 5, it cannot be inferred that F.I.R. was dictated by the constable of the police station on which the thumb impression was put by the P.W.1, even for argument sake presuming the variation, this variation is of trivial nature. At the police station when copy of FIR is given to the complainant then his signatures are obtained on the Carbon copy of FIR. So this procedure some times confuses the witnesses and they say that their signature on the report were obtained at the police station. On this score alone, the entire prosecution case as set up in F.I.R., cannot be discarded and it does not go to the root of prosecution case. 19. So far as the motive part is concerned, P.W. 1 has stated that he at the relevant time was at his shop, which is situated in his house when Gariba was assaulted by kicks. Gariba narrated the incident to P.W.1 about the quarrel with the appellant Lal Singh and said that he was going to lodge the report, then after closing his shop he followed Gariba. It is a case of direct evidence and P.W.1 and P.W.2 are eye witnesses. Both had seen the incident of assault by pharsa upon Gariba by the accused appellant. Motive loses its significance where the case is based on direct evidence. 20. It is a case of direct evidence and P.W.1 and P.W.2 are eye witnesses. Both had seen the incident of assault by pharsa upon Gariba by the accused appellant. Motive loses its significance where the case is based on direct evidence. 20. The incident of refunding the money to accused appellant and assault by kicks is concerned, that fact was not in the notice of P.W.1 since he was not present at that time. It is evident from his admission. 21. Now the Court has to scrutinise the testimony of P.W.1 and P.W.2 with respect to time, date, place and manner of occurrence and by whom the offence has been committed . P.W.1 has categorically stated that when Gariba started for lodging the FIR he followed him and as he reached near the School, Lal Singh assaulted him by Pharsa, when P.W. 1 raised alarm,Ram Sanehi had come and one more boy came on the spot to whom P.W.1 did not know by name, at that time Lal Singh was saying, "I will kill you." 22. P.W.2 has corroborated the version of P.W.1 and stated that at about 2 P.M.he was grazing animals, he heard the noise and he saw the accused appellant Lal Singh assaulting Gariba by pharsa. At the time of assault Lal Singh was saying," I will kill you." Gariba was taken for treatment to Kurara but he succumbed to the injuries in village Jhalokhar. Shiv Dayal got the Tahriri report inscribed by Devi Deen then they approached to the police station along with dead body. 23. P.W.1 has been put to lengthy cross-examination. Nothing could be elicited in cross examination which may discredit his statement recorded in examination- in-chief. There is complete consistency in examination-in-chief and cross-examination of P.W.1 on material point. P.W.2, who is another eye witness, has also been put to cross examination. Nothing could be extracted from the witness by his cross- examination which may discredit his statement recorded in examination-in-chief. There is complete consistency in his examination-in-chief and in his cross-examination on material aspects. On analysing the testimony of P.W.1 and P.W.2 as a whole there is complete coherence and consistency in inter-se statements of P.W.1 and P.W.2 on the point of date, time, place and manner of occurrence by whom the offence has been committed. The testimony of P.W.1 and P.W.2 are credible, reliable and inspire confidence. 24. On analysing the testimony of P.W.1 and P.W.2 as a whole there is complete coherence and consistency in inter-se statements of P.W.1 and P.W.2 on the point of date, time, place and manner of occurrence by whom the offence has been committed. The testimony of P.W.1 and P.W.2 are credible, reliable and inspire confidence. 24. The incident is alleged to have taken place at 2.00 P.M.on 11.8.2002 and the F.I.R. has been lodged with the police station on the same day at 5.30 P.M. It has come in evidence that after assault by accused upon Gariba, sometime was consumed in arranging the bullock cart to carry the injured Gariba to the police station as well as hospital. After that the injured was taken to P.S. Kurara on the bullock cart and on way he succumbed to the injuries. There is no unnatural delay. The F.I.R. has been lodged without any delay and delay if any for argument sake stands explained. Thus we are of the opinion that F.I.R.has been lodged promptly, without unreasonable delay. 25. It has come in medical evidence that the deceased Gariba sustained 5 incised wounds. While inflicting the blows it has come in ocular evidence that accused appellant was saying, "I will kill you." The blows were made with sufficient force. The cut injuries of the bones have also been noted. All the injuries are alleged to have been caused by pharsa, as per P.W.1 and P.W.2 One suggestion has been given on behalf of appellant to P.W.4 Dr. R.S.Kushwaha and in reply to that it has been stated by him that the injuries on the corpus of the deceased are possible from axe , if it is having, phal laga (sharp portion of the iron). No where it has been suggested on behalf of the appellant that injuries caused on the corpus of the deceased were not possible from the Pharsa. This fact cannot be denied that Pharsa, axe both are heavy sharp edged cutting weapons. 26. Further it has been submitted that Dr. has further stated that the injuries are not possible from any sharp edged cutting weapon, even if this part of the Doctor is taken to be true, it cannot be denied that such injuries which have been noted by the Doctor on the corpus of the deceased are certainly not possible by sharp edged weapon like knife etc. has further stated that the injuries are not possible from any sharp edged cutting weapon, even if this part of the Doctor is taken to be true, it cannot be denied that such injuries which have been noted by the Doctor on the corpus of the deceased are certainly not possible by sharp edged weapon like knife etc. Considering the nature of the injuries and impact of blow of the weapon where the bones have been cut appears to be possible by sharp edged heavy cutting weapon like pharsa. The Medico legal report is in complete coherence with the ocular testimony. The ocular evidence about the manner in which the assault has taken place and nature of injuries sustained by deceased stands fully corroborated. 27. The next submission has been made with respect to the observation made by Doctor in the post mortem examination report about the presence of digested food and gas in the small intestine. It has time and again been reiterated by the Apex Court that mere on the basis of digested food in the intestine the timing of death can not be determined conclusively. The possibility of variation cannot be ruled out. 28. It has been further submitted on behalf of the defence that it is the son-in-law of the deceased, who was expecting property from the deceased Gariba, when came to know that deceased has adopted son of P.W.1 and lost the hope of getting the property, has committed the offence. This fact cannot be denied that P.W.1 would always desire that his son should get the property of Gariba. If this fact as argued by appellant's counsel is conceded for argument sake there was no occasion for P.W.1 to spare son-in-law of the deceased Garibha and to implicate the appellant falsely. The reason is very obvious if the son-in-law had committed the offence then the FIR must have been lodged by P.W.1 against him so that his future prospect of getting the property would have been vitiated for ever. 29. It has been submitted by counsel for the accused appellant that in case the Court is of the opinion that appellant has committed the offence then it must be kept in mind that the offence was committed at a spur of moment due to sudden provocation. 29. It has been submitted by counsel for the accused appellant that in case the Court is of the opinion that appellant has committed the offence then it must be kept in mind that the offence was committed at a spur of moment due to sudden provocation. There was no motive for the appellant, there was no enmity of the appellant with the deceased Gariba hence question of committing the murder would not have arisen and if the Court finds that the accused is guilty then the accused -appellant may be convicted for the offence under section 304 Part-I I.P.C. It has been further submitted that the accused remained in jail from 13.8.82 to 12.7.1991 and subsequently the accused was released on bail and during the course of pendency of this appeal pursuant to execution of non-bailable warrant he is again in jail. The accused is presently incarcerating in jail. It has been further submitted by counsel for the appellant that in case the Court comes to the conclusion that the accused is guilty of culpable homicide not amounting to murder then a lenient view may be taken and the accused may be sentenced to the period already undergone. 30. It has come in evidence of P.W.1 that the deceased narrated the incident that he was assaulted by appellant by kicks and he (Gariba-deceased ) was going to lodge the FIR then after closing the shop the P.W.1 followed the deceased when he reached near Junior high School the appellant assaulted him by pharsa by saying, "I will kill you." 31. As per the autopsy report, five injuries have been noted. Injury no. 1 is on left upper arm, injury no. 2 is on fore arm. Injury No. 3 is on back thorasic region, Injury No. 4 was on lower back. Injury No. 5 was on lower back just below injury No. 4. The doctor has noted the factum of cutting of humerus bone, cutting both the bones of left forearm with respect to injury nos. 4 and 5, muscles and deeper tissues have also been cut, if it is the argument of learned counsel for the appellant taken to true for the argument's sake that appellant did not intend to commit the murder, the blow of pharsa ( weapon of assault ) was not confined to one alone. 4 and 5, muscles and deeper tissues have also been cut, if it is the argument of learned counsel for the appellant taken to true for the argument's sake that appellant did not intend to commit the murder, the blow of pharsa ( weapon of assault ) was not confined to one alone. The blows have been made with full force resulting in cutting of bones, the muscles and deeper tissues. The arguments could have survived if the blows would have remained confined to one and the appellant would have cooled down, but the situation is otherwise, he has repeated blows for five times resulting into injuries which goes to negate the submission of counsel for the defence regarding annoyance at spur of moment being reason of assault. The second instance of assault by pharsa is consequence of first assault by kick by the appellant. There were two incident of assault. Hence we are of the considered opinion that the arguments advanced by the counsel for the appellant cannot be sustained. 32. In view of the aforesaid discussion, we are of the considered view that the learned trial court has rightly appreciated the evidence and has taken a correct decision on the basis of material available on record and has not committed any error in recording the finding of conviction against the accused appellant. The view taken by learned Trial Court is well justified and correct. We do not find any justification to interfere with the finding recorded by learned Trial Court. 33. The appeal is bereft of merit and is, accordingly, dismissed. The appellant is already in jail. He shall serve out the sentence awarded by the learned Trial Court. 34. The copy of this order along with lower court record be transmitted forthwith to the learned trial court for compliance. ——————