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2015 DIGILAW 3936 (ALL)

RAMRIKH v. STATE OF U. P.

2015-12-11

NAHEED ARA MOONIS, SHASHI KANT GUPTA

body2015
Judgment : (Delivered by Hon'ble Naheed Ara Moonis, J.) The instant appeal has been preferred by the appellant against the judgment and order dated 15.1.1983 passed by IVth Additional Sessions Judge, Bulandshahr in S.T. No.146 of 1982 arising out of Case Crime No.169 of 1981 whereby the appellant was sentenced to undergo life imprisonment under Section 302 IPC and five years rigorous imprisonment under Section 394 IPC. Both the sentences were directed to run concurrently. The facts emanating from the prosecution case are that a First Information Report was lodged by Mamchand on 29.11.1981 at 10.30 A.M. in respect of the incident occurred in the intervening night of 28/29.11.1981 at about 12 P.M. against the appellant Ramrikh and three unknown persons contending therein that on previous night he was sleeping in his hut along with his wife. His brother Meharchand was sleeping along with his wife under a thatch adjoining the house where a lantern was burning. Prakasho, the sister-in-law of Meharchand, was also sleeping in the adjacent room. At about 12 P.M. in the night on the scream of Meharchand the complainant woke up and and flashed the torch and rushed towards his brother Meharchand. He had seen that four miscreants holding lathi and spears were beating and dragging his brother Meharchand and Kranti, the wife of Meharchand out of the house. His brother Meharchand and Kranti were screaming badly. At this his nephew Pal came flashing torch light. Prakasho, the sister-in-law of Meharchand, also came out on hearing shrieks. She was also assaulted by the accused persons. Out of them the appellant Ramrikh who resides near his house, was recognized in the torch and lantern light. Rest of the persons were not recognized at that moment. When all the persons raised alarm and exhorted the appellant Ramrikh fired at his brother Meharchand with katta. Two of the accused also ran towards the complainant Mamchand. Then he retraced and tried to run few paces to save life towards north. They had also fired at him but it was missed. Thereafter all the accused persons entered into the house of his brother Meharchand and took away gold and silver ornaments as well as clothes. The complainant's brother Meharchand, his wife Kranti and his sister-in-law Prakasho had sustained serious injuries, on account of which, they were carried on a tractor to Dadri Hospital. Thereafter all the accused persons entered into the house of his brother Meharchand and took away gold and silver ornaments as well as clothes. The complainant's brother Meharchand, his wife Kranti and his sister-in-law Prakasho had sustained serious injuries, on account of which, they were carried on a tractor to Dadri Hospital. The doctor had advised to take them to Delhi for treatment. His brother, however, succumbed to the injuries on his way to Delhi. Few days before the incident Ramrikh's brother Rame and one Santram and others of Badoli had set fire to the house of his brother Meharchand regarding which a report was lodged consequently, Rame, the brother of the appellant Ramrikh and others were sent to jail. On account of the aforesaid enmity Ramrikh, the appellant in association with his companions had committed murder of his brother Meharchand. The complainant has left the dead body of the deceased Meharchand and injured at his house to lodge the First Information Report for action be taken against accused persons. The First Information Report was scribed by Ramvir Singh. Triloki Chand (P.W-5), Head Constable prepared the chik report and registered the case as Case Crime No.169 of 1981 under Sections 302,394 IPC, P.s. Dankaur, District Baulandshahr in the general diary Ext. Ka-3. The investigation was entrusted to Station Officer J.S. Tyagi (P.W-8) who recorded the statement of the informant. He proceeded along with S.I. Shishram Singh and other police force to the place of occurrence. J.S. Tyagi (P.W-8) had taken the custody of the corpse and started the inquest at 1.30 P.M. which was concluded at about 3 P.M. on the same day and was proved by him as Ext. Ka-7 and recorded the statement under Section 161 Cr.P.C. He had also prepared the corpse diagram Ext. Ka-8, Challan of the corpse Ext. Ka-9, letter to Chief Medical Officer for postmortem Ext. Ka-10 and letter to the R.I. Ext. Ka-11. The sealed cadaver was carried out by Constable Ranjeet Singh (P.W-6) and Vijay Pal Singh for the autopsy. The investigating officer J.S. Tyagi (P.W-8) had interrogated Smt. Kranti, the wife of the deceased Meharchand and Smt. Prakasho, the sister-in-law of the deceased Meharchand and other persons. He had also collected blood stained and plain earth of which memo was prepared as Ext. Ka-13. The investigating officer J.S. Tyagi (P.W-8) had interrogated Smt. Kranti, the wife of the deceased Meharchand and Smt. Prakasho, the sister-in-law of the deceased Meharchand and other persons. He had also collected blood stained and plain earth of which memo was prepared as Ext. Ka-13. The lantern was also recovered which was Exhibited as Ka-14 and the electric torches of the complainant and witness Pal of which memo was prepared as Ext. Ka-15 and were handed over to them. The investigating officer (P.W-8) had also prepared the site plan proved by him which was Exhibited as Ka-12. After completion of investigation on the basis of material collected, the investigating officer forwarded the charge sheet against the appellant Ramrikh which was Exhibited as Ka-16. Dr. S.K. Dutt (P.W-4) who had performed the autopsy of the deceased Meharchand on 30.11.1981 at 4.50 P.M., had found following ante-mortem injuries which are as follows: Lacerated wound ¾ " x ¼ " over left leg 2" below right knee joint; Lacerated wound ½" x ¼" over right forearm back 2" below right elbow; Firearm wound of entry 1 ¼" x 1 ¼" x cavity deep 3 ½" away from umbilicus (abdomen) at 10 O' clock position right side with blackening present; Firearm wound (Exit) 1 ½ x 1 ¼" x cavity over abdomen left side 3" away from umbilicus at 2 O' clock position intestine with omentum coming out; Abraded contusion ½" x 1" on left arm front 2" below left shoulder; Contusion 4" 4" over left half of scalp. On internal examination he found the frontal and left parietal bones fractured with subdural haemotoma. Membranes of the brain were intact but were congested and the brain was compressed with blood clot on the left side. The peritoneum was lacerated at the place of fire arm wound and there was blood in the abdomen. There was digested food in the stomach. The small as well as large intestines were lacerated and so also the lobe of the liver. In his opinion the death had resulted from shock and haemorrhage due to the ante-mortem injuries. The postmortem report has been proved by him is Ext. Ka-2. Dr. There was digested food in the stomach. The small as well as large intestines were lacerated and so also the lobe of the liver. In his opinion the death had resulted from shock and haemorrhage due to the ante-mortem injuries. The postmortem report has been proved by him is Ext. Ka-2. Dr. S.R. Chaudhary (P.W-7) had examined the injuries of Smt. Kranti, the wife of the deceased on 29.11.1981 at 7.15 P.M. and following injuries were found on her person: Incised wound 3 cm x ½ cm x bone on top of left forehead, 4 cm above left eye brow, margins are clean cut bleeding present; Contusion 9 cm x 2 cm on back of left chest on scapula bone; Contusion 10 cm x 2 cm on back of middle of chest left 8 cm below injury no.2; Contusion 6 cm x 2 cm .2 cm below injury no.3 kept under observation; Contusion 8 cm x 2 cm on top of right shoulder. Injury no.1 was caused by sharp weapon and the rest were caused by some blunt object. Injuries No. 4 and 5 were kept under observation and X-ray was advised. The injury report is Ext. Ka-5. Smt. Prakasho, the sister-in-law of the deceased was also examined by Dr. S.R. Chaudhary (P.W-7) at 7.30 P.M. and the following injuries were found on her person: Lacerated wound 2 cm x .5 cm x scalp on back of left side 3 cm above left ear; Lacerated wound 5 cm x 1 cm on outer aspect of left forearm middle deep up to muscle; Traumatic swelling 6 cm x 4 cm on front of left knee. All the injuries were simple caused by some blunt object. The duration of the injuries of both the victims was ¼ day which tallies with the time of the occurrence. The injury report of Prakasho (P.W-3) is Ext. Ka-6. The case was committed to the court of sessions. The charges were framed under Sections 302 and 394 IPC which were read over and explained to the appellant to which he pleaded not guilty. Hence the trial commenced. The prosecution in order to bring home the charges under Sections 302 and 394 IPC framed against the accused appellant examined 8 (eight) witnesses. The charges were framed under Sections 302 and 394 IPC which were read over and explained to the appellant to which he pleaded not guilty. Hence the trial commenced. The prosecution in order to bring home the charges under Sections 302 and 394 IPC framed against the accused appellant examined 8 (eight) witnesses. Out of them three were witnesses of fact, namely, Mamchand who was examined as P.W-1, Kranti, the wife of the deceased as P.W-2 and Smt. Prakasho, sister of P.W-2 Kranti as P.W-3 who are the injured witness as they had been assaulted at the time of the incident. The prosecution examined formal witnesses, namely, Dr. S.K. Dutt as P.W-4 who had performed the autopsy of the deceased Meharchand, Head Constable Triloki Chand as P.W-5 who had proved the chik report and the G.D. Entry, Ranjeet Singh as P.W-6 who took the dead body in a sealed cover for postmortem examination, Dr. S.R. Chaudhary as P.W-7 who had examined injured P.W-2 Kranti and P.W-3 Prakasho and S.O. Jitendra Singh Tyagi as P.W-8 who had conducted the investigation and submitted the charge sheet against the appellant Ramrikh. The appellant was examined under Section 313 Cr.P.C. who had denied the incriminating circumstances put before him. He had also denied that his brother Rame had set fire the hut of the deceased Meharchand and has stated that he has falsely been implicated due to enmity and under the pressure of the police. He had also contended that the deceased Meharchand was a man of bad character and assaulted his brother's wife Gyanwati regarding which his brother Ram Murti had lodged a report. His brother has been implicated in a false case and on account of the same he has also been nominated in this crime. The appellant had not adduced any documentary evidence in support of his case. On the basis of the appraisal of the evidence on record the lerned trial judge recorded the conviction and imposed the sentence as has been stated hereinbefore. Hence the present appeal. Learned counsel for the appellant has submitted that according to the prosecution case the offence was committed in the intervening night of 28/29.11.1981 and First Information Report was lodged by complainant Mamchand (P.W-1) who is the real brother of the deceased Meharchand against the appellant and three other persons. Hence the present appeal. Learned counsel for the appellant has submitted that according to the prosecution case the offence was committed in the intervening night of 28/29.11.1981 and First Information Report was lodged by complainant Mamchand (P.W-1) who is the real brother of the deceased Meharchand against the appellant and three other persons. It is alleged that Meharchand was assaulted by firing by the appellant and the wife of Meharchand, Smt. Kranti (P.W-2) and his sister-in-law Smt. Prakasho (P.W-3) have also sustained injuries in he incident which took place in the night but the FIR came into light only at about 10.30 A.M. on the very next day. Thus the FIR was lodged after much delay for which no plausible explanation has been given by the prosecution which shows that the FIR has been lodged after due deliberation. The genesis of the occurrence or in other words the motive part has been disclosed in the last four lines of the FIR indicating the animus due to earlier incident of arsenal of a hut belonging to the deceased Meharchand. It is mentioned in the FIR that the deceased and his wife Kranti were dragged by the miscreants from where they were sleeping but according to the medical report no dragging mark was found on their persons. There is great discrepancy which creates doubt about the source of light in which assailants were recognized by the complainant and other injured persons. Two torches have been recovered, one torch was of Ever Ready mark and another was of Jeep mark, which were said to have been flashed by the complainant and another witness Pal, but Pal had never been produced or examined by the prosecution. The description of torches does not find in the statement of the complainant. The recovery memo in respect of lantern does not bear any signature of the complainant which was given into his custody after preparing its memo. The medical report of the injured persons is also not in consonance with the manner of assault as mentioned in the FIR. The injured Smt. Kranti (P.W-2), the wife of the deceased, is said to have received injuries of some sharp edged weapon. The nature of injury which has been mentioned in the medical report was incised wound on the top of left forehead. The injured Smt. Kranti (P.W-2), the wife of the deceased, is said to have received injuries of some sharp edged weapon. The nature of injury which has been mentioned in the medical report was incised wound on the top of left forehead. The injured has stated that she has been caused injury with spear then the injury could only punctured wound and not the incised wound. Other injuries were contusions. The doctor has opined that the injury no.1 could be caused by sharp edged weapon and as such injury could not have been caused by spear as mentioned in the FIR. The injured Smt. Prakasho (P.W-3), the sister-in-law of the deceased, is also alleged to have sustained injury. The doctor had found two lacerated wounds and traumatic swelling but no punctured or incised wound were found on her person whereas it has been specifically mentioned in the FIR that Smt. Prakasho was also assaulted with lathi and spear when she came out after hearing the noise. From the statement of the witness Prakasho (P.W-3), she is said to have been hit by use of ballam whereas weapon assigned to the miscreants in the FIR is spear. There is no spear or ballam injury on her person. It has been alleged that the incident of assault continued for about half an hour but the nature of injuries sustained by the deceased and the injured ladies do not commensurate with their medical reports and the prosecution case. Prakasho (P.W-3) had specifically stated that her sister Kranti (P.W-2) sustained 5-6 injuries of ballam and 10-12 injuries of lathi. She had also stated that about 10-12 lathi sustained by the deceased and she had also sustained injury. Her statement is in contradiction with the medical evidence available on record. On the basis of glaring contradiction prevailing in the statement regarding number of injuries sustained by the victims, it is contended that the witnesses were not present on the spot and they had not seen the incident who had been produced by the prosecution to substantiate the prosecution story. There is so much contradiction in the statement of injured witnesses which clearly belies the entire prosecution case hence they can be said to be tutored one. The inconsistency of medical report of the two injured persons with the prosecution case has also made the presence of the complainant at the time of incident highly doubtful. There is so much contradiction in the statement of injured witnesses which clearly belies the entire prosecution case hence they can be said to be tutored one. The inconsistency of medical report of the two injured persons with the prosecution case has also made the presence of the complainant at the time of incident highly doubtful. The autopsy of the deceased Meharchand was conducted by Dr. S.K. Dutt (P.W-4) on 30.11.1981 at 4.50 P.M. While conducting autopsy he had mentioned the duration of the time of death was one and a half day to two day old. The injury no.3 is entry wound and injury no.4 is its exit wound. There is neither any incised wound caused by any sharp edged weapon or pointed weapon when it was stated that the deceased was assaulted with spear. There is specific averment in the statement of the witnesses that the appellant fired shot after putting countrymade pistol on his belly (lagakar mara) but there is absence of any wad. There are abraded contusions but the doctor has not found any mark of dragging. Thus the postmortem report of the deceased has also not supported the prosecution case. It has vehemently argued by the learned counsel for the appellant that the incident occurred on the previous night at about 12 P.M. whereas the FIR was lodged at 10.30 A.M. on 29.11.1981. The complainant has admitted in his statement that he had reached at the police station at 6 P.M. then there is no explanation about four hours that took him to get the FIR registered. It clearly shows that the investigating officer was hand in gloves with the prosecution. It is further contended that the scribe of the FIR Ramveer Singh has not been examined. In the FIR it was mentioned that out of four accused persons two accused were covering their faces. It is very strange that the appellant who was residing in the same vicinity and known to the complainant party, had not covered his face. The minute detail as narrated by the prosecution witness is highly improbable and unbelievable. The appellant has been roped in the present case merely on suspicion on account of previous enmity. All the witnesses are related and partisan and hence the learned trial court has erred in convicting the appellant merely on the basis of the statement of the partisan witnesses. The appellant has been roped in the present case merely on suspicion on account of previous enmity. All the witnesses are related and partisan and hence the learned trial court has erred in convicting the appellant merely on the basis of the statement of the partisan witnesses. The motive set up by the prosecution is just to mount pressure upon the appellant and to spite vengeance. The source of light in which the appellant and other persons were recognized has been developed later on to work out the prosecution case. The factum of robbery has also not been proved by any cogent evidence and hence the conviction and sentence of the appellant of five years awarded by the trial court is absolutely against the evidence on record. Learned counsel for the appellant has laid emphasis that prosecution has utterly failed to prove its case beyond all reasonable doubt against the appellant who has been implicated by the complainant on account of previous enmity. There is great inconsistency in the prosecution case with the statement of the witnesses vis-a-vis with the postmortem report of the deceased as well as medical report of two injured ladies, yet the trial court has proceeded merely on the basis of conjunctures and surmises holding that the appellant is guilty of the commission of offence of murder and causing hurt while committing robbing and convict him under Sections 302, 394 IPC for life imprisonment and five years rigorous imprisonment respectively on both the counts. Concludingly, it was summarized by contending that instant appeal deserves to be allowed and the conviction and sentence of the appellant Ramrikh be set aside and he may be acquitted of the charges. Sri Rajeev Gupta, learned A.G.A. has vehemently opposed the argument advanced by the learned counsel for the appellant and contended that so far as the lodging of the FIR on the next day is concerned, the reason for the delay has been explained in the FIR as well as in his testimony by the complainant who was examined as P.W-1. In the said incident the complainant's brother and two female members of the family had sustained injuries at the hands of the appellant and other unknown persons. It was the natural action on the part of the complainant Mamchand to take all of them firstly for medical aid to the hospital. In the said incident the complainant's brother and two female members of the family had sustained injuries at the hands of the appellant and other unknown persons. It was the natural action on the part of the complainant Mamchand to take all of them firstly for medical aid to the hospital. The complainant at once arranged vehicle and took his brother Meharchand as well as Kranti, the wife of Meharchand and Prakasho, the sister-in-law of Meharchand to Dadri Hospital. The doctor advised the complainant to take Meharchand (since deceased) to Delhi then a car was arranged by him while on way to Delhi he died, then the complainant took both the injured persons and his deceased brother to his house. The complainant had specifically stated that he reached to his village at 6 A.M. in the morning. Since his brother died he would have taken sometime to compose himself to take any action against the appellant and other accused persons and thereafter he reached at the police station and lodged the FIR. The FIR was lodged at 10.30 A.M. after covering 18 Km. from the place of occurrence to the police station. Therefore, it cannot be said that after arrival of the police the FIR was lodged after deliberation. Learned A.G.A. has further contended that the appellant was known to the victims as well as to the complainant. It is not a case of mistaken identity as the incident occurred in the intervening night of 28/29.11.1981. The recovery of torches have not been challenged in cross-examination. Merely because the dragging mark was not found it would not belie the eyewitness account as the deceased and his wife Kranti might have been pulled out rather than dragging them on the ground. After lodging of the FIR investigating officer reached at the place of occurrence and conducted the inquest of the deceased at 1.30 P.M. So far as the motive part is concerned the appellant has motive to take revenge as his brother was made an accused in a case of arson and was arrested by the police. The brother of the appellant had lodged the report against the deceased and the complainant under Sections 452,323 IPC which has been admitted by the appellant in his statement recorded under Section 313 Cr.P.C. that his brother Ram Murti had lodged the report against the deceased in respect of assaulting his brother's wife Ramwati. The brother of the appellant had lodged the report against the deceased and the complainant under Sections 452,323 IPC which has been admitted by the appellant in his statement recorded under Section 313 Cr.P.C. that his brother Ram Murti had lodged the report against the deceased in respect of assaulting his brother's wife Ramwati. This would be an additional motive with the accused appellant to commit murder of Meharchand. There is no reason to falsely implicate the appellant leaving behind the real culprit when the eyewitnesses are the complainant and two injured witnesses, one is wife of the deceased and another is sister-in-law of the deceased. The graphic description in the FIR will not tantamount that the appellant has falsely been implicated. The medical report of the two injured witnesses coupled with the postmortem report of the deceased leave no room for doubt in respect of the manner of incident occurred on the previous night. All the witnesses have put to lengthy cross-examination but nothing could be elicited from their statement by the defence to discredit their testimony. The appellant in association with his companions has participated in the offence, merely because the appellant was not covering his face at the time of incident would not mitigate his offence otherwise it will give licence to every person to commit such crime and then to take the plea that he had not committed the crime otherwise he would have covered his face. So far as the postmortem of the deceased is concerned that he was assaulted with lathi and spears but no spear injury has been found by the doctor, therefore the plea of the appellant that the presence of the witnesses who had witnessed the occurrence is doubtful cannot be accepted. The deceased might have been inflicted injury from the blunt part which could have hit bony part of his body on account of which two lacerated wounds were found beside abraded contusion. The postmortem report is consistent with the eyewitness account that the appellant had fired at the deceased from very close range causing injury over his right side abdomen of which there was an exit wound 3 c.m. away from umbilicus. The loops of intestines were coming out. There was blackening at the wound of entry. The postmortem report is consistent with the eyewitness account that the appellant had fired at the deceased from very close range causing injury over his right side abdomen of which there was an exit wound 3 c.m. away from umbilicus. The loops of intestines were coming out. There was blackening at the wound of entry. The wife of the deceased had specifically stated that the appellant had taken meal at about 9 P.M. and while conducting postmortem of the deceased semi digested food was found in the stomach which also confirms about the time of incident. The inmates of the house were the natural witnesses who had seen the occurrence and, therefore, if independent witness was not examined will not belie the entire prosecution or weaken the testimony of the natural witnesses. Section 134 of the Evidence Act clearly speaks about that evidence has to be weighed not to be counted. The testimony of Triloki Chand (P.W-5) who had proved the lodging of the FIR at 10.30 A.M. on 29.11.1981 and testimony of P.W-6 Ranjeet Singh who had carried the cadaver for postmortem examination cannot be doubted as they have not been cross-examined by the defence and as such their testimony is intact. The statement of the injured witnesses on some points have given exaggerated description with respect to the manner of assault can be discarded as they are rustic villagers. Their statement is rather confirming a ring of truth. The testimony of the injured witness should be rated high which is a guarantee with regard to the presence of the witnesses. The injuries sustained by the two female cannot be said to be self inflicted. The Hon'ble Apex Court in the case of Balwan and others Vs. State of Haryana (2014) 13 SCC 560 has held that it is trite law that the evidence of injured witness, being a stamped witness, is accorded a special status in law. This is as a consequence of the fact that injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness would not want to let actual assailant go unpunished. The contradictions and variations in the testimonies of the aforesaid witnesses, in our considered view do not go to the root of the case and the substratum of the prosecution version remains undisturbed. The contradictions and variations in the testimonies of the aforesaid witnesses, in our considered view do not go to the root of the case and the substratum of the prosecution version remains undisturbed. It is to be borne in mind that both of them are rustic women and not tutored witnesses. The Hon'ble apex court in the case reported in 2011(3) Crimes 10 SC ( Bhagaloo Lodh Vs. State of U.P.) has held in paragraph-18 as follows : "18. Evidence of a close relation can be relied upon provided it is trustwrthy. Such evidence is required to be carefully scrutinised and appreciated before resting of conclusion to convict the accused in a given case. But where the Sessions Court properly appreciated evidence and meticulously analysed the same and the High Court re- appreciated the said evidence properly to reach the same conclusion, if is difficult for the superior court to take a view contrary to the same, unless there are reasons to disbelieve such witnesses. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are inter-related to each other or to the deceased (Vide:M.C. Ali & Anr. v. State of Kerala, AIR 2010 SC 1639 ; Myladimmal Surendran & Ors. V. State of Kerala, AIR 2010 SC 3281 ; Shyam v. State of Madhya Pradesh, (2009) 16 SCC 531 ; Prithi v. State of Haryana, (2010) 8 SCC 536 ; Surendra Pal & Ors. v. State of U.P. & Anr; (2010) 9 SCC 399 ; and Himanshu @ Chintu v. State (NCT of Delhi), In view of the law laid down, no fault can be found with the evidence on the record, the appeal lacks merit and is liable to be dismissed. We have heard Sri Gaurav Kakkar, learned counsel for the appellant and Sri Rajeev Gupta, assisted by Sri Syed Hasan Abdi, learned A.G.A. for the State and have taken through the record. From the rival submission of both the parties and from the record of the case the motive for committing the murder of the complainant's brother has been clearly established by cogent evidence. From the rival submission of both the parties and from the record of the case the motive for committing the murder of the complainant's brother has been clearly established by cogent evidence. It has been initially mentioned in the FIR itself that Rame, the brother of Ramrikh along with Santram and others of Badoli had set fire to the thatched house of the deceased few days prior to the present incident regarding which a report was lodged by the deceased Meharchand against Rame, the brother of the appellant Ramrikh, and others, who were sent to jail. This was the strong motive for the appellant to take revenge of his brother Rame from the deceased Meharchand. Moreover, it is well settled that when there is direct evidence the motive pales into insignificance. So far as the question of lodging of FIR in respect of the incident which occurred in the intervening night of 28/29.11.1981 on the next day at 10.30 A.M. by the complainant is concerned, it has also been satisfactorily explained by the complainant in the First Information Report as well as in his statement recorded before the trial court. It has been specifically averred by the complainant (P.W-1) that after the butcherous assault upon his brother the deceased was badly injured and not only his brother was badly injured but the deceased's wife and sister-in-law, namely Smt. Kranti and Smt. Prakasho had also sustained injuries at the hands of the appellant and his associates. Therefore, it was quite natural that the complainant had first taken the injured to give medical aid. He took all of them on a tractor to Dadri Hospital where the medical officer advised him to take Meharchand to Delhi. Then a taxi was hired by him and while taking his brother in a taxi on way at Surajpur his brother succumbed to the injuries. He brought back the corpse of his brother to his house and after traveling 18 Km. from his village he reached at the police station and had lodged the First Information Report. In the intervening night it is quite natural on account of shock the entire family would be under grief as the complainant had lost his brother and Smt. Kranti had lost her husband and as such there was no occasion to go immediately to lodge the First Information Report. In the intervening night it is quite natural on account of shock the entire family would be under grief as the complainant had lost his brother and Smt. Kranti had lost her husband and as such there was no occasion to go immediately to lodge the First Information Report. Nothing has been elicited in the cross-examination of the complainant to create any doubt in lodging of the FIR at 10.30 A.M. The Head Constable Triloki Chand (P.W-5) had proved the chik report and the G.D. Entry coupled with the evidence of Ranjeet Singh, P.W-6 who had taken the dead body of the deceased Meharchand for postmortem from the place of incident, remained unchallenged as they have not been cross-examined by the defence, therefore the genuineness of lodging the FIR at the relevant point of time cannot be doubted merely because it came into existence on the next day. The FIR was registered and duly formed the part of the records of the police station which are maintained in normal course. In any case it is a settled proposition of law that the FIR by itself is not a substantive piece of evidence but it certainly is a relevant circumstance of the evidence produced by the investigating agency. Once registration of FIR is proved by the police and the prosecution has succeeded in proving its case beyond reasonable doubt by other admissible relevant and cogent evidence it will be impermissible for us to ignore the evidentiary value of the FIR. The FIR has been duly proved by P.W-5 Trilok Chand, Constable. Delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the FIR/complaint is always fatal as it will give presumption of after thought with false accusation. It has also been submitted by the learned counsel for the appellant that there is no independent witness to support the prosecution story and the witnesses, who have been examined are partisan as they are related with the deceased and as such their evidence is not worthy of any credence. According to the prosecution case the incident had taken place at about 12 O' Clock in the night when Meharchand was sleeping alongwith his wife in the thatched house closed to the house of the complainant (P.W-1). According to the prosecution case the incident had taken place at about 12 O' Clock in the night when Meharchand was sleeping alongwith his wife in the thatched house closed to the house of the complainant (P.W-1). The complainant was also sleeping in his hut and the sister-in-law of the deceased Smt. Prakasho was also sleeping in the house of Meharchand in a adjoining thatched room. On the shrieks of the deceased the complainant (P.W-1) woke up and with the flash of torch light he found that the appellant Ramrikh along with three other persons dragging his brother and his wife Smt. Kranti from the thatched. A lantern was burning in his house. Smt. Prakasho also came out and found that the appellant along with other persons having lathi and spears were assaulting and dragging Meharchand and his wife. The appellant Ramrikh had fired with a pistol at Meharchand from a very close range he fell on the ground and other persons had assaulted him. Thereafter the appellant and other miscreants started robbing the house hold articles and bid their escape good. Thus the incident which had occurred in the dark hours of night, the inmates of the house were the most natural witnesses to witness the incident. At the dead of night it would be futile to expect of the prosecution to produce the independent outsiders as witnesses. The manner of incident as narrated by P.W-1 Mamchand has been consistently narrated by the deceased's wife Smt. Kranti Devi and Smt. Prakasho his sister-in-law who have been examined as P.W-2 and P.W-3. They are the natural witnesses and merely because no independent witness has been examined by the prosecution will not belie the manner of incident. On the shrieks of the deceased nephew Pal had also arrived there flashing his torch and his presence at the time of incident has also been mentioned in the FIR. Merely because he has also not been examined by the prosecution will not doubt about his presence at the time of incident as it is not number of witnesses but it is the quality that is material. The time honoured principle is that the evidence has to be weighed and not counted. On this principle stands the edifice of section 134 of the Evidence Act. The test is whether the evidence has a ring of truth cogent, credible and trustworthy. The time honoured principle is that the evidence has to be weighed and not counted. On this principle stands the edifice of section 134 of the Evidence Act. The test is whether the evidence has a ring of truth cogent, credible and trustworthy. The evidence also cannot be disbelieved merely on the ground that the witnesses are interrelated to each other or to the deceased and as such they were interested witnesses. No evidence can be simply discarded as it came from interested parties to hold them that they are false witnesses. Their evidence are subject to close scrutiny. The case in hand where all of them were cross-examined by the defence but nothing could be extracted therefrom which could have impaired their credibility. The witnesses had no reason to falsely implicate the appellant and spare the real assailant. The accused appellant Ramrikh was identified in the light of torch and lantern of which a memo was prepared by the investigating officer, therefore, it cannot be said that there was no occasion for the complainant to recognize the appellant. A known person can be identified from his peculiar features of gait manner of walk etc. The Hon'ble the Apex Court in the case of Hari Obula Reddy And Ors. vs The State Of Andhra Pradesh (1981) 3 SCC 675 has laid down certain broad guidelines in respect of scrutinizing the evidence of the eye-witnesses, which is being reproduced here below: "But it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasise that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations." In Sucha Singh and another Vs. State of Punjab reported in 2003(7) Supreme Court Cases 643 the Apex Court held that the witness being a close relative and being a partisan witness is not a sole factor to reject his testimony. A relation would not conceal the actual culprit and make allegation against an innocent person. State of Punjab reported in 2003(7) Supreme Court Cases 643 the Apex Court held that the witness being a close relative and being a partisan witness is not a sole factor to reject his testimony. A relation would not conceal the actual culprit and make allegation against an innocent person. Learned counsel for the appellant has laid stress upon that the appellant Ramrikh had not covered his face while other persons were covering their faces to shield their identity a person who belongs to the same village ought to have covered his face and only to implicate the appellant it has been mentioned that the appellant Ramrikh was not covering his face, which is quite unnatural to say that without covering his face the appellant would not come to commit the murder of Meharchand. It has been contended by the learned counsel for the appellant that the medical report of the deceased is inconsistent with the prosecution case as it has been specifically mentioned that the accused appellant and other persons were dragging the deceased Meharchand and his wife Smt. Kranti out of the house who had been assaulted with lathi and spear but according to the postmortem report there was neither dragging mark nor spear injury on the body of the deceased. The learned counsel for the appellant has again tried to create doubt about the manner of incident. From the postmortem report it is clearly discernible that the deceased has sustained two lacerated wounds and two firearm wounds (one entry and one exit) and one abraded contusion and one contusion. The spear could have been used from the blunt side and the blade of the spear might have been hit the deceased. The appellant Ramrikh has been attributed the role of firing which is consistent with the postmortem report showing gun shot wound of entry at the right side of abdomen and the exit wound on the left side. There was blackening around wound of entry. There is nothing in the cross-examination of the Dr. S.K. Dutt (P.W-4), who had conducted the autopsy of the deceased to discredit his testimony with regard to the injuries suffered by the injured which is fully corroborating with the prosecution case. No specific question put to the Doctor for noticing dragging mark on the dead body of the deceased. There is nothing in the cross-examination of the Dr. S.K. Dutt (P.W-4), who had conducted the autopsy of the deceased to discredit his testimony with regard to the injuries suffered by the injured which is fully corroborating with the prosecution case. No specific question put to the Doctor for noticing dragging mark on the dead body of the deceased. This could not again belie the entire prosecution as he could have pulled out rather than having dragged on the ground, therefore the Doctor has not mentioned any dragging mark on his person. The prosecution case cannot be thrown over board. Learned counsel for the appellant has also tried to elucidate various discrepancies in the statement of Smt. Kranti (P.W-2) and pointed out that the investigating officer did not find any blood from inside the hut up to the place where the deceased fell down. If the investigating officer has not noticed the blood inside the hut which could have been trampled and disintegrated on account of soil but where the deceased fell down the investigating officer had collected the blood stained earth. This lapse on the part of the investigating officer will not go to the root of the case to belie the genuineness of the occurrence as narrated by the P.W-2 Smt. Kranti, who is the wife of the deceased. With regard to the medical report of Smt. Kranti (P.W-2) it has been argued by the learned counsel for the appellant that victim has been examined after a great delay at about 7.15 P.M. on 29.11.1981 whereas the incident had allegedly occurred in the intervening night of 28/29.11.1981 at 12 P.M. Nothing has been interrogated on this count by the defence but under the circumstances of the case it is quite natural that the husband of P.W-2 was done to death in a ghastly manner in front of her eyes, therefore, injuries suffered by her would not be more important or significant to her to be examined firstly. After entire formalities conducted by the investigating officer the dead body was sent for postmortem and thereafter two injured ladies were sent for medical examination. In such circumstances the delay in examining their injuries would not cast any doubt with regard to the manner of incident. After entire formalities conducted by the investigating officer the dead body was sent for postmortem and thereafter two injured ladies were sent for medical examination. In such circumstances the delay in examining their injuries would not cast any doubt with regard to the manner of incident. The statement of P.W-2 was corroborated with the statement of Smt. Prakasho (P.W-3), who is the sister of P.W-2 and sister-in-law of the deceased who came to their house about 7 days before the said incident. Smt. Prakasho (P.W-3) was also brutally assaulted by the appellant and his associates. It is not the case of the defence that she had never seen the appellant before the incident. It was in her knowledge that prior to the incident thatched house of Meharchand was set on fire by the brother of the appellant and other accused persons against whom a report was lodged by the deceased Meharchand. Thus the motive to commit murder of deceased has been fully proved by Smt. Prakasho (P.W-3) also. After killing Meharchand she was also robbed of her ear ring and the house hold articles were looted away. Smt. Prakasho (P.W-3) had also explained that after receiving the injuries P.W-1 had taken Meharchand and his wife Smt. Kranti by a tractor to Dadri Hospital and the Doctor had advised to take Meharchan to Delhi. While Meharchand was being carried in a taxi to Delhi he succumbed to injuries at Surajpur, then the dead body of the deceased was taken back to the village and kept on the cot. Thereafter the complainant went to lodge the FIR. Thus the testimony of P.W-3 Smt. Prakasho has fully supported the prosecution case and cannot be said to be tutored one. Learned counsel for the appellant has also tried to raise doubt with regard to injuries received by the two injured namely, Smt. Kranti (P.W-2) and Smt. Prakasho (P.W-3) as there are discrepancies in their statement in respect of receiving of lathi and spear injuries. In this regard it s necessary to mention that when several persons are making assault simultaneously it would be difficult to count the number of blows with which the deceased or the injured have been dealt with by the accused persons. No person of ordinary prudence can count brutal blows. In this regard it s necessary to mention that when several persons are making assault simultaneously it would be difficult to count the number of blows with which the deceased or the injured have been dealt with by the accused persons. No person of ordinary prudence can count brutal blows. But the fact remains that in the said incident both the witnesses had sustained injuries and hence their statement fully corroborates the manner of incident and their presence cannot be doubted in any manner. The two injured witnesses are built in guarantee of their presence at the scene of the incident. Their evidence cannot be termed as untrustworthy. While committing murder of the brother of the complainant the accused appellant and other persons had also committed robbery in his house. The description of articles, which were robbed by the miscreants has been given in the FIR. While taking away ornaments they had also caused injuries to Smt. Kranti (P.W-2) and Smt. Prakasho (P.W-3). Smt. Kranti (P.W-2) is most natural witness of the entire incident who was sleeping along with her husband when the appellant with three other persons entered into the thatched house and dragged them out of their hut beating mercilessly by lathi and spears. She had also received injuries of lathi and spears and was deprived of her gold ear rings. Her testimony cannot be doubted and minor variation in her statement would not discredit her version being a rustic woman. The learned trial court has conducted the trial and sifted the evidence carefully and has rightly came to the conclusion that the appellant who had motive to commit the crime, has committed ghastly murder of the complainant's brother. The learned trial Judge has found that the deceased was done to death by the appellant in a brutal manner by causing injury with firearm over his abdomen besides other fatal injuries caused by his associates resulting into fracture of frontal and left parietal bones and other injuries which has fully corroborated the eyewitness account. The P.W-2 Kranti and P.W-3 Prakasho were also injured. Their testimonies are natural, cogent and trustworthy. Therefore, the conviction and sentence of the appellant Ramrikh deserves to be upheld. Thus in view of the above conspectus we are constrained to reject the submissions made by the learned counsel for the appellant. The P.W-2 Kranti and P.W-3 Prakasho were also injured. Their testimonies are natural, cogent and trustworthy. Therefore, the conviction and sentence of the appellant Ramrikh deserves to be upheld. Thus in view of the above conspectus we are constrained to reject the submissions made by the learned counsel for the appellant. In the ultimate conclusion in view of the the totality of the evidence on the record and under the circumstances of the case, this Court does not find any illegality or perversity in the judgment and order passed by the IVth Additional Sessions Judge, Bulandshahr in S.T. No.146 of 1982 arising out of Case Crime No.169 of 1981. The recorded conviction and sentence does not call for any interference. The appeal has no force and is accordingly dismissed. The appellant Ramrikh is on bail. His bail is cancelled. The CJM Bulandshahr shall cause the appellant Ramrikh to be arrested and lodged in jail to serve out the sentence. Let a copy of this order be notified to the trial court for it's intimation and necessary compliance. Judgment be certified and be placed on record.