Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 3937 (ALL)

SUKHBIR v. STATE OF U. P.

2015-12-11

NAHEED ARA MOONIS, SHASHI KANT GUPTA

body2015
Judgment : (Delivered by Naheed Ara Moonis.J.) The instant appeal has been preferred against the judgment and order dated 22.7..1982 passed by the Vth Addl. Sessions Judge Bulandshahar in Sessions Trial No.637 of 1980, (State versus Sukhbir & others) whereby the appellants have been convicted and sentenced under section 302/34 IPC to undergo life imprisonment. During the pendency of the appeal, the appellants no.1 & 4 namely Sukhbir and Meghraj have died as per office report dated 6.10.2012 which has been confirmed by the report sent by Chief Judicial Magistrate Bulandshahar hence the appeal against the appellants no.1 & 3 already stood dismissed as abated vide order 19.1.2015 passed by another Bench of this Court. Heard Sri Manish Tiwary, learned counsel for the appellant no.2 assisted by Sri Imran Ibrahim and Sri A.K.Awasthi and M.C.Singh, learned counsel appearing on behalf of the appellant no.3 Madan Pal and Sri Rajeev Gupta, learned AGA appearing on behalf of the State have been taken through the record. The emanation of the facts giving rise to the present appeal in a short conspectus is that an F.I.R. was lodged by Sukhvir appellant no.1 (now deceased) on 24.2.1979 at about 11.00 a.m. against Vijendra (deceased) and Sukkan (P.W.2) and two unknown persons vide case Crime No. 51 of 1979 under sections 457/380 IPC at Police Station Narsena District Bulandshahar containing the allegations that in the night of 24.2.1979, the complainant Sukhvir (appellant no.1) was sleeping in his house along with his wife Malla Devi (appellant no.2) and children. At about 11.00 p.m. Sukhvir (appellant no.1) woke up on account of some noise and he found that the door of his Kotha was opened. The appellant no.1 raised alarm uttering the word "Chor Chor" and on his shouting and shrill a number of persons namely Meghraj Singh (appellant no.4 deceased), Sipattar Singh, Latoor, Buddha,Kali Charan living contiguous to his house and other persons of the locality came at the house of the appellant no.1 .Three thieves fled away from the scene of occurrence in a very swift way coming down from the Kotha. One thief was caught hold by the appellant no.2 (Malla Devi) in the courtyard of the house. The thief who was caught hold by the appellant no.2 (Smt. Malla Devi) was given sound beating by a number of persons including the appellant no.1. He fell down on the ground and succumbed to injuries. One thief was caught hold by the appellant no.2 (Malla Devi) in the courtyard of the house. The thief who was caught hold by the appellant no.2 (Smt. Malla Devi) was given sound beating by a number of persons including the appellant no.1. He fell down on the ground and succumbed to injuries. One thief recognized in the light of the torch was Sukkan s/o Bangali hailing to the same village. He had also sustained injuries while encircling the thieves. He left the place of occurrence even after sustaining the injuries. One thief was given severe beating as a consequence whereof he succumbed to injuries after some time. On the basis of written report given by the appellant no.1, a chick report (Ex.Ka.11) was prepared by the constable/clerk Om Prakash against deceased and Sukkan (P.W.1) son of Bengali resident of village Ginaura Nagli vide Case Crime No.51 of 1979 under sections 457/380 IPC Police Station Narsena District Bulandshahar. On registration of the aforesaid case, Ram Pratap Singh (P.W.8) Station Officer Narsena proceeded on the place of occurrence along with S.I. Balbir Singh and four constables . He found the dead body of the deceased Vijendra Singh lying in the house of appellant no.1 Sukhbir. The investigating officer got prepared the inquest report from S.I. Balbir Singh . He also prepared the photo of the dead body and sent the corpse to mortuary after putting seal in the Supurdgi of constable Mahabir Singh (P.W.7) and Constable Mahak Singh. He prepared the recovery memo vide Ext. Ka.8 for Rs. 332.00 which was found in the clothes of the deceased Sukkan. Photo of dead body of Vijendra Singh was prepared by S.I. Balbir Singh vide Ext. Ka.4. The Investigating Officer prepared the challan lash vide Ext.Ka.5, took blood stained and plain earth from the spot and prepared a memo vide Ext. Ka.9. He recorded the statement under section 161 Cr.P.C of the witnesses who did not narrate the prosecution version in a natural and instinctive manner. During the course of investigation, Ram Pratap Singh (P.W.8) got suspicious with respect to the death of Vijendra Singh. The autopsy of Virendra Singh was conducted by Dr. P.C.Agarwal (P.W.5) posted as Medical Officer at District Hospital Bulandshahar on 25.2.1979. Following ante-mortem injuries were found on the person of the deceased Vijendra Singh. 1.Lacerated wouind 1"x 1/2" scalp deep on right head 4'1/2" above right ear. The autopsy of Virendra Singh was conducted by Dr. P.C.Agarwal (P.W.5) posted as Medical Officer at District Hospital Bulandshahar on 25.2.1979. Following ante-mortem injuries were found on the person of the deceased Vijendra Singh. 1.Lacerated wouind 1"x 1/2" scalp deep on right head 4'1/2" above right ear. 2.Abrasion 1'' x ½ '' on the right forehead 1'1/2'' above right eyebrow. 3.Abrasion ½'' x ½'' on the front of forehead 1'1/2'' above nose bridge. 4.Abrasion 2'1/2'' x ½'' on lt. Forehead ½'' above the eye brow. 5.Abrasion 1'' x 1'' outer left face ½'' below left lower eyelid. 6.Abrasion 2'1/4'' x 1'' obliquely on the left neck upper part 1'' below the left ear. 7.Abraded contusion 5'1/2'' x ½'' on the lower part of left neck ½'' below the injury no.6. 8.Abrasion 1'' x ½'' on the back of right neck 3'1/2'' below the right ear. 9.Abrasion 2'' x ½'' on the back of right arm just above right elbow. 10.Abrasion 1'1/2'' x ½'' on outer part of right forearm 3'' On the internal examination, Dr. P.C.Agarwal (P.W.5) found the fracture of the hyoid bone, neck muscles and lungs were also found congested. The cause of death was asphyxia as a result of strangulation (Injury no.7). According to the opinion of the doctor, the death might have taken place in the intervening night of 23/24.2.1979 in the mid night. Dr. P.C.Agarwal (P.W.5) proved the post mortem examination report vide Ext. Ka.2. The Investigating Officer Ram Ratan Singh (P.W.8) proceeded with the investigation and prepared the site plan of the incident vide Ext.Ka. 10. He also recorded the statement of the witnesses mentioned in the first information report lodged by the appellant no.1 Sukhvir. On the statement so recorded under section 161 Cr.P.C. the investigating officer discovered some foul smell emitting from the prosecution story set up by the appellant no.1. He proceeded to village Ginaura Nagli and recorded the statement of Sukkhan (P.W.1) who was made an accused by the appellants and was released on bail from the court. He recorded the statement of Smt. Misaria (P.W.3) wife of Sukkhan (P.W.1) besides a number of persons. On the pointing of Sukkhan (P.W.1) a bowl (Katora) was recovered from the house of the accused Sukhbir. He recorded the statement of Smt. Misaria (P.W.3) wife of Sukkhan (P.W.1) besides a number of persons. On the pointing of Sukkhan (P.W.1) a bowl (Katora) was recovered from the house of the accused Sukhbir. It is alleged that in the said bowl (Katora), Vijendra Singh (deceased) used to take vegetable from the house of Sukkhan (P.W.1) in the evening of 23rd February 1979. The investigating officer discovered incriminating materials showing complicity of the appellants as the victim was found in the association of the appellants. The investigating officer prepared the recovery memo of bowl vide Ext.Ka.1. and also made thorough probe with regard to the verity & truthfulness of the incident on 4th March 1979 in the village Ginaura Nagli. He after collecting convincing and trustworthy materials came back at the police station Narsena and dictated a report to Head Moharrrir Manohar Singh against accused Sukhbir Singh, Smt. Malla Devi, Madanpal and Meghraj which was registered as case crime no.51A under section 302 IPC and the same was entered in the General Diary Report vide Ext.Ka.13 . On 18.4.1979, Sukhbir, Madanpal and Mehraj were arrested .The arrest of Smt. Malla Devi could not be effected on the said date as she was not present in the village Ginaura Nagli. Subsequent thereto, the station Officer Ram Pratap Singh (P.W.8) was transferred from the said police station and the pending investigation was taken over by Gopi Chand Pichori on 14.8.1979. He received three photo graphs of deceased Vijendra Singh and got those photographs identified from Sukkhan, K.Prasad, Jagbir and others who disclosed that these photographs are of Vijendra Singh (deceased) who was murdered inside the house of Sukhbir. The charge sheet was submitted by Gopi Chand Pachori (P.W.10) on 10.10.1979 against the four appellants. Thereafter the case was committed to the Court of Sessions and the charges were framed against them under sections 302/34 IPC. The accused appellants pleaded not guilty and claimed to be tried. In order to prove guilt of the appellants, the prosecution has examined ten witnesses out of which three witnesses namely Sukkhan P.W.1, Parmal Singh, P.W.2 and Smt. Misaria P.W.3 are the witnesses of facts. The accused appellants pleaded not guilty and claimed to be tried. In order to prove guilt of the appellants, the prosecution has examined ten witnesses out of which three witnesses namely Sukkhan P.W.1, Parmal Singh, P.W.2 and Smt. Misaria P.W.3 are the witnesses of facts. They disowned the prosecution version divulged by the appellant no.1 and stated that in the intervening night of 23/24.2.1979 at about mid night, the accused Sukhbir Smt. Malla Devi ,Madanpal and Meghraj committed murder of Vijendra Singh by inflicting severe beating . They deposed that Vijendra (deceased) was well known to the accused persons from before and the victim Vijendra Singh used to visit the house of accused Sukkhan since last 2 and 2'1/2 years back of the occurrence. The prosecution had also examined the P.W.4 Tuhi Ram who corroborated that Vijendra Singh (deceased) was known to him earlier. P.W. 5, Dr. P.C.Agarwal who had conducted the post mortem of the deceased Vijendra Singh proved the same vide Ext.Ka.2. He found fracture of hyoid bone and in his opinion, death was caused due to asphyxia as a result of strangulation i.e. injury no.7 Neck injury. P.W.7 Mahavir Singh (constable) who had taken the dead body of Vijendra Singh for autopsy proved the same. Om Prakash (constable) P.W.9 proved the chick FIR lodged by the appellant no.1 Sukhbir. The Investigating Officer (P.W.8) Ram Pratap Singh after collecting credible and clinching material showing the complicity of the appellants converted the case under section 302 IPC. Gopi Chand Pachauri was examined as P.W.10 who had taken over the investigation from Ram Pratap Singh and had submitted the charge sheet on 10.10.1979 vide Ext. Ka.14. After examining the prosecution witnesses, the statements of the accused persons were recorded under section 313 Cr.P.C. wherein they denied the charges levelled upon them . They claimed that they have been falsely implicated in the present case on account of parti-bandi. The appellant no.1 narrated the story that the appellant no.1 with his wife Smt. Malla Devi and his children were sleeping in his house. At about 11.00 p.m. the appellant no.1 woke up on account of some noise and found the door of his Kotha opened . On his alarm and screaming Megharaj, Sippatar Singh, Latoor Buddha ,Kalicharan and other persons came at the residence of Sukhbir (appellant no.1) . Four thieves appeared from the Kotha of the appellant no.1 . At about 11.00 p.m. the appellant no.1 woke up on account of some noise and found the door of his Kotha opened . On his alarm and screaming Megharaj, Sippatar Singh, Latoor Buddha ,Kalicharan and other persons came at the residence of Sukhbir (appellant no.1) . Four thieves appeared from the Kotha of the appellant no.1 . They tried to flee away from the place of occurrence. One of the thief was caught hold by his wife Smt. Malla Devi (appellant no.2) in the court yard of her house. The so-called thief was given sound beating as a result of which he fell on the ground and succumbed to injuries. The learned trial court found sufficient materials showing the complicity of the appellants and arrived at definite conclusion that the accused appellants had committed murder of Vijendra Singh in furtherance of common intention. The said murder was committed with pre-concerted and premeditated mind and the prosecution had proved the charge against the accused appellants under section 302/34 IPC. On the basis of corroboration of charges with ostensible act of common intention, the learned Sessions Judge convicted and sentenced them under sections 302/34 IPC as the guilt stood proved against them with regard to the murder of Vijendra Singh. The accused appellants no.1 and 4 namely Sukhbir and Meghraj died during the pendency of the appeal, thus the appeal against the appellants no.1 and 4 was dismissed as abated by another Bench of this Court vide order dated 19.1.2015. Now this Court is proceeding to consider the appeal against the surviving appellants no.2 & 3 namely Smt. Malla Devi and Madanpal. Heard Sri Manish Tiwary, learned counsel appearing on behalf of the appellants no.2 Smt. Malla Devi and Sri M.C.Singh, learned counsel for the appellant no. 3 Madan Pal and the learned counsel for the complainant as well as the learned AGA Sri Rajeev Gupta and have been taken through the record. It is submitted by the learned counsel for the appellants that it is a case of lurking house trespass in the house of Sukhbir (appellant no.1) in the interregnum night of 23/24.2.1979 and one thief (the victim Vijendra Singh) was caught hold by Smt. Malla Devi . The victim was inflicted sound beating as a result of which he fell on the ground and died on the spot and the injured Sukkhan fled away from the spot. The victim was inflicted sound beating as a result of which he fell on the ground and died on the spot and the injured Sukkhan fled away from the spot. Sukkhan had sustained injuries in the said incident but was not examined and his statement under section 164 Cr.P.C. was recorded on 4.3.1979 after getting the bail from the court below who disclosed a different story. No first information report was lodged from the side of the victim with regard to murder of Vijendra Singh. The conduct of the P.W.1 and P.W.2 namely Sukkhan and Parmal is quite unnatural as stated by them in their deposition. The statements of the P.W.1 and P.W.2 namely Sukkhan and Parmal Singh also appear highly suspicious, in case they had seen the incident, they did not inform the police with regard to the said incident. The statement recorded under section 164 Cr.P.C. of Sukkhan (P.W.1) cannot be accepted in evidence as the same was not proved. Dr. P.C. Agarwal (P.W.5) who had conducted the autopsy of the deceased Vijendra Singh could not corroborate the cause of death as asphyxia as a result of strangulation. Emphasis has been laid by the learned counsel for the appellants that the participation of the appellant no.2 Malla Devi is highly improbable as the appellant no.2 was not in a position to move on account of advance stage of pregnancy being of eight months which she has asserted in her statement under section 313 Cr.P.C. The complicity of the appellants had come into light after 8/9 days of the alleged incident that the appellants had committed murder of Vijendra Singh in a pre concerted and pre-planned manner. The prosecution has not put forth any strong motive behind the commission of the said crime. There is material inconsistency in the statement of the prosecution witnesses and medical testimony which creates doubt about their verity and truthfulness. Sri Dushyant Pal, the learned counsel appearing on behalf of the appellant no.3 Madan Pal supported the submission advanced by Sri Manish Tiwary, learned counsel for the appellant no.2. He submitted that there is no element or any motive showing the complicity of the appellant no.3 to participate in the said occurrence. He has not been named in the first information report lodged by the accused Sukhvir against the P.W.1 Sukkhan as a witness of the incident. He submitted that there is no element or any motive showing the complicity of the appellant no.3 to participate in the said occurrence. He has not been named in the first information report lodged by the accused Sukhvir against the P.W.1 Sukkhan as a witness of the incident. The P.W.1 Sukkhan has implicated him on account of property dispute. The appellant no.3 Madanpal had no motive to participate in the said occurrence making his presence at the house of the appellant no.1 Sukhvir. No specific role has been allocated to the appellant no.3 . Even if the prosecution story may be taken to be true in toto there is no whisper about his participation and the appellant no.3 cannot be subjected for prosecution on the preponderance that he is known to the appellant no.1 and P.W.1 Sukkhan. The witnesses are highly partisan and interested. They want to wreak their vengeance by putting the appellants behind the bar. There is no independent witness to support the prosecution case. The learned trial judge has mis-appreciated and misconstrued the evidence on record and arrived on erroneous conclusion by drawing wrong inference. The judgment and order passed by the court below is per se erroneous and deserves to be set aside. The life and liberty of the appellants cannot be taken away on the dint of conjectures and surmises .The testimony of the witnesses are not trustworthy and reliable. There is material contradiction in the evidence of the witnesses . There is no circumstance to form such a motive to share in the said crime for eliminating the victim Vijendra Singh. The conduct of the victim is also relevant factor connecting with the circumstantial evidence. The prosecution has not proved its case beyond reasonable doubt that the murder of Vijendra Singh was committed by the appellants in furtherance of common intention. The entire prosecution story has been rested on the evidence collected by the investigating officer during the course of investigation which cannot be made sole basis for conviction since the chain of circumstances pointing towards the guilt of the accused appellants has not been proved and the court cannot infer common intention that several persons dealt blows on a particular person as a result of which he succumbed to injuries. The circumstances are not of conclusive nature proving that in all human probability the said murder would have been committed by the accused appellants. In case the circumstances connecting the chain of evidence are rested on reasonable hypothesis ,the accused appellants must be given the benefit of doubt as their complicity has not been proved beyond all probabilities . In the present case, there is no concrete proof against the appellants sharing the intention to kill Vijendra singh,hence the appellants no.2 & 3 may be exculpated from the charges of murder setting aside the judgment and order passed by the learned trial judge. Per contra learned AGA Sri Rajeev Gupta, assisted by S/Sri Rahul Asthana and C.P.Singh, learned counsel appearing on behalf of State opposed the submission advanced by the learned counsel for the appellants contending that there is no embellishment in the prosecution version . The appellant no.2 Malla Devi who is the wife of the appellant no.1 Sukhbir is the chief architect of the incident. The victim had succumbed to unnatural death . There is no reason to disbelieve the presence of the accused persons as the defence has not been able to put forth any material in contradiction or rebuttal to the statement of the witnesses. Their testimony has been sifted and vetted by the learned trial judge in arriving at the irreversible conclusion. The investigating officer collected credible and clinching evidence showing the complicity of the appellants on the basis of which they were charge sheeted .The appellants have been convicted and sentenced on the gravamen of offence that the accused appellants had got no right to cause death to Vijendra Singh after catching him hold as a thief. There is no scope for mistaken identity as the accused appellants were well known to the witnesses. The motive behind the commission of the gruesome and barbarous murder of victim Vijendra Singh stood proved by the evidence as the appellants were already nurturing animus against the victim Vijendra Singh and had succeeded in their nefarious design of eliminating him in the cloak of theft. There is nothing on record to buttress this fact that the accused appellants were falsely entangled in the present case because of factionalism. The appellants denied the charges in their statement recorded under section 313 Cr.P.C and pleaded for trial. There is nothing on record to buttress this fact that the accused appellants were falsely entangled in the present case because of factionalism. The appellants denied the charges in their statement recorded under section 313 Cr.P.C and pleaded for trial. There is common intention of all the accused persons to do a particular criminal act and in furtherance of that common intention , all of them joined together with each other in the commission of said act. In case anyone of accused appellant might not do the act but he helps by his presence, he would be held to have actual participation in the commission of the said incident. There is conspicuous pre-arranged plan anterior to the commission of the offence and the criminal act has been done in concert pursuant to the pre-arranged plan. The evidence has been judged and weighed cautiously and warily with great circumspection as all the witnesses supported the prosecution version. The investigating officer Gopi Chand Pichori (P.W.10) carried out the investigation and received three photographs vide Ext. nos. 1,2, & 3 of victim Vijendra Singh . The investigating officer got them identified from the witnesses namely Sukkhan, K.Prasad, Jagbir and others . After collecting clinching and credible materials showing the complicity of the accused appellants,they were charge sheeted on 10.10.1979. All the accused persons joined together and committed the gruesome crime in a very dastardly and barbarous manner culminating into death of an innocent persons causing grievous injuries by sound beatings and onslaught. The accused appellants clearly acted in concert and played potential role to liquidate the victim. The minor variation in the evidence of the witnesses and the medical is of no consequence .The testimony of the eye witnesses cannot be doubted. On the pointing of Sukkhan P.W.1, a bowl 'Katora' was recovered from the house of appellant no.1 Sukhbir. It was proved that Vijendra Singh (deceased) used to take cooked vegetables from the house of P.W.1 in the evening of 23rd February 1979. There is no reason to implicate the appellants falsely leaving to the actual assailants who had taken the life of an innocent person. No adverse inference has been elicited in the cross examination by the defence so as to discredit the prosecution version. There is nothing in the cross examination to discredit or overshadow the prosecution version. There is no reason to implicate the appellants falsely leaving to the actual assailants who had taken the life of an innocent person. No adverse inference has been elicited in the cross examination by the defence so as to discredit the prosecution version. There is nothing in the cross examination to discredit or overshadow the prosecution version. The motive behind the commission of the crime has been re-iterated by all witnesses of fact who had divulged the entire version in a very natural and unbleached manner. Initially the first information report was lodged under section 457/380 IPC on the report of Sukhbir (appellant no.1). Ram Pratap Singh Station Officer recorded the statement of Harpal Sharma, Prahlad and Ram Pratap Singh. He got some clue creating suspicion with regard to death of Vijendra Singh. He made search of Sukkhan but he was not available. After three days of the incident, Sukkhan surrendered and got his bail from the court below. Ram Pratap Singh Station Officer (P.W.8) went to village Ginaura Nagli on 4.3.1979 with S.I. Balbir Singh and interrogated Sukkhan (P.W.1) and also recorded the statement under section 161 Cr.P.C. of Smt. Misaria (P.W.3) Parmal Singh (P.W.2) Jagbir Singh (P.W.6) K. Prasad and Tuhiram (P.W.4) and others Ram Pratap Singh Station Officer (P.W.8) returned to police station and got a case under section 302/34 IPC vide Crime No. 51A registered against all the appellants. On 18.4.1979 accused Sukhbir, Madanpal and Meghraj were arrested and the appellant no.2 Malla Devi could not be arrested as she was not available in the village. On the transfer of P.W.8 Ram Pratap Singh Station Officer, rest part of the investigation was carried out by Gopi Chand Pichori Station Officer (P.W.10) .Gopi Chand Pichori investigating officer (P.W.10) after collecting clinching and credible material showing the complicity of the accused appellants submitted charge sheet vide Ext.Ka.14. There is consistent testimony showing complicity of the appellants therefore, the surviving appellants do not deserve to be exculpated at the dint of passing the animosity with other persons. The appellants have rightly been convicted for murder as the testimony of witnesses was consistent, reliable and trustworthy connecting with the chain of circumstances. The testimony of witnesses was corroborated by the medical evidence . From the evidence of Dr. P.C.Agarwal (P.W.5), it is conspicuously explicit that Vijendra Singh succumbed to injuries as a result of strangulation. The appellants have rightly been convicted for murder as the testimony of witnesses was consistent, reliable and trustworthy connecting with the chain of circumstances. The testimony of witnesses was corroborated by the medical evidence . From the evidence of Dr. P.C.Agarwal (P.W.5), it is conspicuously explicit that Vijendra Singh succumbed to injuries as a result of strangulation. Strangulation is an overt act of pre-concerted mind. It is not possible in a case of theft to strangulate as the thief could be given spontaneous beatings after holding him into custody. The theory of theft stood belied by the medical evidence of Dr. P.C. Agarwal (P.W.5). The evidence of witnesses namely Sukkhan (P.W.1), Pramal Singh (P.W.2) and Smt. Misaria (P.W.3) finds support from the medical evidence of Dr. P.C.Agarwal (P.W.5) that the victim had succumbed to injuries by placing lathi on his throat. In such connectivity of circumstances, it would not be proper to stifle the prosecution case supposedly that Vijendra Singh had trespassed into the house of Sukhbir for committing theft. The prosecution version is fully corroborated by the medical evidence that Vijendra Singh was done to death in furtherance of common intention by the active participation of all the accused appellants. No adverse inference could be drawn against the prosecution with regard to the manner of incident as suggested by the learned counsel for the appellants. There is no improvement or prevarication on the part of the prosecution witnesses. There is no justification to negate the evidence of the witnesses which is fully corroborated by medical testimony as well as preponderance of probabilities. The deep rooted animosity between the parties itself tilts towards a very strong probability that the appellants have participated in the commission of the said offence hence their involvement in the present case cannot be apportioned to be an offshoot of got-up affair. There is evidence of overt act sharing the common object at all the crucial stage. The common intention has to be inferred from the adjoining factors taking into account the manner of assault and mode of killing. The evidence of the doctor who conducted the autopsy of the dead body of Vijendra Singh cannot be drifted away in a very insouciant and pedantic manner. P.W.4 Tuhiram is an independent witness. He had narrated that Vijendra Singh used to come in the village for the last so many years. The evidence of the doctor who conducted the autopsy of the dead body of Vijendra Singh cannot be drifted away in a very insouciant and pedantic manner. P.W.4 Tuhiram is an independent witness. He had narrated that Vijendra Singh used to come in the village for the last so many years. P.W.6 Jagbir Singh who was declared hostile by the prosecution had also divulged that the victim Vijendra Singh was last seen in the village Ginaura Nagli before his death. The prosecution had established its case beyond all reasonable doubt that Vijendra Singh used to visit house of Sukhbir and was well known to the accused persons from before the incident. The victim Vijendra was not a stranger to the accused appellants. The defence had failed to show that the deceased Vijendra Singh was not known to the accused appellants and was succumbed to injuries in the house of Sukhbir on the spontaneous outburst of anger on account of trespassing into his house in the night which is clear from the chick report vide Ext.Ka.11. The theory set up by the accused appellants that the victim Vijendra Singh was not known to them from earlier and the case of trespass in the house of Sukhbir for committing theft did not stand fully corroborated by the evidence since the victim Vijendra Singh was given sound beating as a result of which he succumbed to injuries. The intention of the accused appellants has been inferred from the act, conduct and other relevant circumstances. The motive behind the commission of the occurrence stood fully proved by the prosecution witnesses, the manner in which the victim was called in the house of Sukhbir on the pretext of returning his money and mounted the attack by strangulation. There is nothing in the cross examination to create doubt about the verity and probity of the manner of the incident committed by the accused appellants. The prosecution case for want of corroboration by independent witness cannot be rejected as no-one is generally coming forward to narrate the occurrence in the natural manner. The testimony of the witnesses cannot be discarded without scrutinizing the same with care and caution. The testimony of the witnesses cannot be swiped merely on the ground that they belong to a particular faction or group and are related with the deceased or the informant. The testimony of the witnesses cannot be discarded without scrutinizing the same with care and caution. The testimony of the witnesses cannot be swiped merely on the ground that they belong to a particular faction or group and are related with the deceased or the informant. The evidence of the witnesses has to be assessed on its own merits . There is no valid reason to discredit or overshadow the testimony of the witnesses whose testimony is consistent and trustworthy. The overt act of the accused appellants has conspicuously been proved that they had committed heinous and devilish act of murder in furtherance of their common intention therefore, the impugned judgment and order passed by the court below may be maintained and upheld and the appellants may be taken into custody as they are still extending threats to the prosecution party. Before expressing any opinion on the merits of the case, it would be feasible to analysis the rival submissions advanced by the learned counsel for the parties in the light of the prosecution version and the defence taken by the accused appellants. It is conspicuous that the first information report was lodged by Sukhvir (appellant no.1) naming unknown miscreant and Sukkhan that in the intervening night of 23/24.2.1979 ,he was sleeping in his house along with his wife Smt.Malla Devi and children . At about 11 P.M. Sukhbir got up due to some shrill and noise and saw the door of the Kotha unlatched. Sukhbir (appellant no.1) cried and raised exposing the word "chor chor". On his screaming and alarming Meghraj Singh, Sipattar Singh, Latoor Singh, Buddha and Kalicharan and other persons came at the house of Sukhbir. Four thieves appeared from the Kotha of appellant no.1 (Sukhbir) and tried to flee away from the place of occurrence. One of the thief was caught hold by the wife of Sukhbir (appellant no.1) Malla Devi in the courtyard of her house. The said thief was inflicted sound beating as a result of which he fell down and succumbed to injuries. Out of four thieves, another thief, identified in the light of torch was Sukkhan who had also sustained injuries while he was encircled but he succeeded to run away from the place of occurrence along with two other thieves. The said thief was inflicted sound beating as a result of which he fell down and succumbed to injuries. Out of four thieves, another thief, identified in the light of torch was Sukkhan who had also sustained injuries while he was encircled but he succeeded to run away from the place of occurrence along with two other thieves. On the dictate of the appellant no.1 case was registered under sections 457/380 IPC divulging the facts that unnatural death was caused to Vijendra Singh. The ocular account of the witnesses finds corroboration from the medical evidence and the channel of circumstances connecting with the commission of the offence which has not at all been challenged by the defence. The overt act of the accused persons accompanied with participatory conduct at the relevant spur of the moment for the victim in a pre-planned manner and the circumstances from which the inference of guilt was drawn is fully established and is unimpeachable beyond a shadow of doubt consistent with the hypothesis of the guilt of the accused persons. All the circumstances were of conclusive nature and the chain of evidence conspicuously shows that within all human probability the act has been done by the accused persons. The manner in which the victim was done to death has portrayed very inhuman and gruesome state of mind of the accused appellant no.1 and all the appellants have totally denied entire the incriminating circumstances put to them under section 313 Cr.P.C. which only goes to show that the appellants are not coming with lucid facts resulting into the death of Vijendra when the dead body was found inside the house of the appellant no.1. The appellant no.1 has called the victim on the pretext of giving Rs. 10,000/-which was deposited by the deceased with the appellant no.1. The victim Virendra came at the house of the appellant Sukhbir a day prior to the incident. He demanded some amount from Sukhbir as there was marriage of his nephew and he had given "Bhat" for which he required some money. The appellant Sukhbir asked him to come after 7 or 8 days so that he would arrange some money. Again Vijendra Singh came to the house of appellants to take the money. He demanded some amount from Sukhbir as there was marriage of his nephew and he had given "Bhat" for which he required some money. The appellant Sukhbir asked him to come after 7 or 8 days so that he would arrange some money. Again Vijendra Singh came to the house of appellants to take the money. This fact was divulged by the deceased Vijendra himself to P.W.1Sukhan at his shop on 23.2.1999 at 5 p.m. and also told that Sukhbir has asked him that he will give the money in morning. On the same day Sukhan had given a bowl of cooked vegetable to the deceased thereafter he went to the house of the appellant where he was beaten up by Sukhbir, Madan Pal, Meghhraj and Smt. Malla Devi. The P.W.1 Sukhan reached there and intercepted them but all in vain. Thereafter all the four accused persons pressed his neck with lathi by their legs and was killed to avoid payment of money to the deceased Vijendra by the appellant no.1. All the witnesses present at the time of killing were threatened by the appellants to remain silent otherwise they would also meet with the same fate. Due to fear of the appellants, the P.W.1 took shelter in a forest and a false FIR was lodged by the appellant no.1 against the deceased and P.W.1 Sukhan under section 457/380 IPC. The occurrence is fully supported by the testimony of witnesses and the medical evidence which cannot be overclouded by any stretch of imagination or suspicion. The appellant no.1 has tried to shift the onus upon the deceased Vijendra Singh and Sukkhan by lodging the first information report under sections 457/380 IPC containing false and concocted allegations that four accused persons trespassed into his house. Out of four accused persons, one of the accused was caught hold by Smt. Malla Devi (wife of the appellant no.1) who was given sound beating and thrashing as a result of which he fell on the ground and succumbed to injuries. Ram Pratap Singh (P.W.8) investigating officer recorded the statement of the witnesses who were named in the written report. On recording the statement of Harpal Sharma and Prahlad, the investigating officer (P.W.8) became suspicious about the death of Vijendra Singh. The investigating officer (P.W.8) after recording the statement of Sukkhan (P.W.1) and other persons registered a case crime no. Ram Pratap Singh (P.W.8) investigating officer recorded the statement of the witnesses who were named in the written report. On recording the statement of Harpal Sharma and Prahlad, the investigating officer (P.W.8) became suspicious about the death of Vijendra Singh. The investigating officer (P.W.8) after recording the statement of Sukkhan (P.W.1) and other persons registered a case crime no. 51A under section 302/120B IPC against the appellants . In the course of cross examining the prosecution witnesses, defence side has tried to evolve a story of false implication to overshadow the testimony of the witnesses. It can not be doubted that the accused appellants had perpetrated the crime committing murder of Vijendra Singh in a very inhuman and devilish manner giving cloak of a theft. Such first information report by this appellant no.1 is clearly admissible in evidence. It is not a confession rather the appellant no.1 gave untrue explanation and wrong information to the police about the theft which never took place in his house. In Faddi Vs. State of Madhya Pradesh AIR 1964 SC 1850 , the Apex Court discussed the admissibility of FIR by a person who himself became an accused in evidence and held that section 25 of Evidence Act and section 162 of the Code of Criminal Procedure does not bar its admissibility. The insignificant contradiction in the statement of witnesses will not absolve the accused persons from their guilt. It is explicitly borne out that all the accused persons had equally participated in the commission of crime and it is immaterial to distinguish the role of the accused persons since the joint liability of the accused appellants can very well be inferred from their conduct and from other relevant circumstances coupled with the medical evidence on record. When several persons simultaneously attack with common intent, no distinction between causing the fatal and non-fatal wounds could be drawn while allocating the guilt. The death of victim Vijendra Singh took place while he was in the house of the accused appellants. The autopsy report also confirmed the manner whereby the victim Vijendra Singh was strangulated to death. His hyoid bone was found fractured while conducting post mortem which is another chain of circumstance connecting the accused appellants with the said crime. The corpse of victim Vijendra Singh was lying in the courtyard of the appellant no.1 which itself demonstrates about the participation of accused appellants. His hyoid bone was found fractured while conducting post mortem which is another chain of circumstance connecting the accused appellants with the said crime. The corpse of victim Vijendra Singh was lying in the courtyard of the appellant no.1 which itself demonstrates about the participation of accused appellants. There is medical evidence on record buttressing this fact that the accused appellants had caused death of the victim Vijendra with sound beating. There is neither any contradiction or improvement in the statement of the witnesses nor in the post mortem report hence the court below had rightly accepted the evidence of those witnesses as reliable and trustworthy. Therefore, the judgment and order passed by the learned Additional Sessions Judge being reasoned and judicious deserves to be upheld. In the light of verbose and prolix discussion, we come to the irreversible and irrevocable conclusion that the judgment and order dated 22nd July 1982 passed by the learned Vth Additional Sessions Judge Bulandshahar does not suffer from any infirmity or vulnerability warranting interference by this Court. The conviction and sentence of all the appellants as awarded by the learned trial judge is hereby maintained and upheld. Resultantly, the appeal fails and is hereby dismissed. The appellants no.2 and 3 who are on bail be taken into custody forthwith to serve out the sentence as awarded by the court below. Office is directed to send back the record to the trial court. Judgment be certified and placed on record.