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2015 DIGILAW 4136 (ALL)

VED PAL v. STATE OF U. P.

2015-12-23

NAHEED ARA MOONIS, SHASHI KANT GUPTA

body2015
JUDGMENT Hon’ble Naheed Ara Moonis, J.—The aforesaid appeals are directed against the common judgment and order dated 22.12.1981 passed by the learned Vth Additional Sessions Judge, Shahjahanpur in S.T. No. 204 of 1981 arising out of case Crime No. 117 of 1981, under Sections 147, 148, 149, 302, 201 and 120-B I.P.C., police station Tilhar, district Shahjahanpur whereby the appellants Ram Saran, Puttu and Ram Bharosey of the Criminal Appeal No. 146 of 1982 have been convicted under Section 148 I.P.C. for one year rigorous imprisonment, under Section 302/149 I.P.C. to undergo imprisonment for life and under Section 201/149 I.P.C. For two years rigorous imprisonment. The appellants Ved Pal and Rishi Pal of the connected Criminal Appeal No. 472 of 1982 have been sentenced to undergo one year rigorous imprisonment under Section 147 I.P.C., under Section 302/149 I.P.C. to undergo life imprisonment and under Section 201/149 I.P.C. for two years rigorous imprisonment. All the sentences were directed to run concurrently. The co-accused Radhey who has not been found guilty of offence punishable under Sections 147, 302/149 and 201/149 I.P.C. has been acquitted by the trial Court. 2. During the pendency of the appeal the appellants Ram Saran, Puttu, Ved Pal and Rishipal have expired and as such the appeal stood abated against them vide order dated 24.9.2012 and 5.8.2014. Now the sole appellant Ram Bharosey on whose behalf Sri Rahul Mishra, Advocate assisted by Sri Raghuvansh Mishra has appeared is mooting his argument. 3. The prosecution case emanating from the oral first information report lodged by Chhotey Lal in respect of an incident occurred at sunset on 2.3.1981 that the appellant Ram Saran was in inimical terms with his cousin Ram Swaroop. Ram Saran has a factory (Karkhana) in village Chandokha. Ram Swaroop had also started construction of the wall for his own factory (Karkhana). Ram Swaroop had also installed a muller (Chakki) and some other machines prior to the occurrence and had applied for electric connection and also got a boring done. He had purchased materials to run the machines prior to the occurrence. This did not find favour with the accused Ram Saran and his family members as it would effect his business. This fact was divulged by Ram Swaroop to the complainant that Ram Saran is trying to eliminate him hence the complainant asked him to be careful from them. He had purchased materials to run the machines prior to the occurrence. This did not find favour with the accused Ram Saran and his family members as it would effect his business. This fact was divulged by Ram Swaroop to the complainant that Ram Saran is trying to eliminate him hence the complainant asked him to be careful from them. One co-accused Radhey who was collateral of accused Ram Saran was residing in village Chandokha since last three years behind the Karkhana of Ram Saran and was in latter’s good book. Police had also recovered rifle from Ram Bharosey on account of which Vaish community was annoyed and Ram Saran who belonged to Vaish community suspected that Ram Swaroop was instrumental for the recovery of rifle hence they all were nurturing grudge against Ram Swaroop. On account of this enmity at the time of sunset when Ram Swaroop was returning from his field towards his house, Ram Saran’s relative co-accused Radhey was following him having lathi and as Ram Swaroop reached near the well to the east of ‘Talab’ and at the corner of the house of Beni Dhanuk, Ram Saran and his brother Puttu armed with gun and his another brother Rishi Pal, Ved Pal @ Vajpayee armed with lathi, Ram Bharosey having Kanta came out from their house surrounded Ram Swaroop. Firstly Ved Pal and Rishi Pal with lathi and Ram Bharosey who was wielded with Kanta started assaulting him, Ram Swaroop on receiving injuries fell down and thereafter other accused persons, namely, Puttu and Ram Saran had made three fire upon him. On scream Ram Swaroop’s brother Ratan came to his rescue then all the accused persons had also assaulted Ratan and fired. Both were killed by them instantaneously at the spot. Prema wife of the deceased Ram Swaroop, Mishri, Bhangi, Nanku Dhobi and Natthu Singh arrived there the complainant alongwith the persons who reached there, exhorted all the accused persons, at this Ram Saran retorted that they have killed two persons and have sufficient means to kill four more persons. As they had pointed their gun towards them, the complainant and others could not move from there and remained standstill while all the accused persons carried away in front of their eyes the dead body of Ram Swaroop towards east in jungle. As they had pointed their gun towards them, the complainant and others could not move from there and remained standstill while all the accused persons carried away in front of their eyes the dead body of Ram Swaroop towards east in jungle. The murder was planned at the instance of co-accused Radhey who had informed the accused persons and had taken the deceased with him from his field. The complainant had left the dead body of Ratan with the wife of the deceased Ram Swaroop and brother Puttu besides various other villagers went to police station to lodge the first information report for appropriate action be taken against the accused persons. The oral first information report lodged at about 10 P.M. on the same day i.e. on 2.3.1981. The distance of the police station from the place of occurrence was about six miles. 4. The first information report scribe by Head Constable Sughar Singh (P.W. 4) who was posted at police station Tilhar, Shahjahanpur obtained thumb impression of the complainant and the chick first information report was registered in the General Diary as Report No. 51 (Exhibit Ka. 2). The case was registered under Sections 147, 148, 149, 302/201 and 120-B I.P.C. as case Crime No. 117 of 1981. The Station House Officer Raj Bahadur Singh (P.W. 6) of police station Tilhar took up the investigation and recorded the statement of the complainant Chhotey Lal (P.W. 1) and Sughar Singh (P.W.4) at the police station on the same day. Criminal law was set in motion as the investigating officer (P.W. 6) left for place of occurrence accompanied with S.I. Ram Lakhan Dwivedi (P. W. 8) and reached at the place of occurrence at about 11.15 P.M. in the night and had taken into custody the dead body of the deceased Ratan, which was lying on the spot. Due to want of proper light the inquest of the dead body of Ratan could not be taken up in the night. Due to want of proper light the inquest of the dead body of Ratan could not be taken up in the night. However, the dead body of the deceased Ram Swaroop was searched with the help of villagers but could not be found, which could only be traced out at about 7 A.M. on 3.3.1981 from the field of Arhar belonging to Nanhey Tiwari of village Bari, police station Tilhar, Shahjahanpur by Ram Lakhan Dwivedi, P.W. 8 who informed about the recovery of the dead body of Ram Swaroop to the Investigating Officer S. O. Raj Bahadur Singh (P.W. 6) who was already engrossed in conducting the investigation at village Chandokha. S. O. Raj Bahadur Singh (P.W. 6) had prepared the site plan on 3.3.1981 exhibited as Ka. 3. He conducted the inquest of the dead body of Ratan and prepared inquest report, photo nash, challan nash and other police papers and sealed the dead body of Ram Ratan in the presence of Ram Lakhan Dwivedi, P. W. 8. The dead body of Ram Swaroop, which was found in the jungle one and half kilometers away from village Chandokha covered under the branches of Arhar plant. The Investigating Officer collected the plain and blood stained earth and leaves and sealed separately and recovery memo was prepared, which was proved by him as Exhibit Ka. 16. The site plan of the place of recovery of dead body of Ram Swaroop was also prepared and exhibited by the Investigating Officer as Exhibit Ka. 7. He had also prepared the inquest report of Ram Swaroop and after completing all formalities handed over the dead body of Ratan and Ram Swaroop to Constable Vijendra Singh (P. W. 5) posted at P. S. Tilhar outpost Madanpur and Constable Kamla Prasad alongwith necessary papers for being carried to mortuary Shahjahanpur on horse cart, which were produced before the Doctor Satya Pal (P. W. 7) on 4.3.1981 for conducting post mortem. The memo was proved by him where the dead body of Ratan was lying as Exhibit Ka. 7. The plain and blood stained soil was collected at the place of murder of Ratan and was kept in a sealed cover and memo was prepared as proved by him as Exhibit Ka. 8. The memo was proved by him where the dead body of Ratan was lying as Exhibit Ka. 7. The plain and blood stained soil was collected at the place of murder of Ratan and was kept in a sealed cover and memo was prepared as proved by him as Exhibit Ka. 8. He also recovered four broken slippers of accused persons from the place of occurrence and was kept in sealed cover of which memo was prepared as Exhibit Ka. 9. He had also recovered two Tikali (wads), one spent cartridge and one missed cartridge from the place of occurrence of which a memo was prepared and was proved by him as Exhibit Ka. 10. 5. He had recorded the statement under Section 161 Cr.P.C. of Nanku P. W. 3, Prema wife of Ram Swaroop and various other witnesses on 8.3.1981. On 3.3.1981 the Investigating Officer searched the house of accused persons and recovered blood stained lathi from the ‘Baithak’ of accused appellant Rishi Pal in the presence of his wife. He sealed the blood stained lathi and prepared the memo which was signed by Chhotey Lal and Puttan and exhibited as Exhibit Ka. 18. He had also prepared the site plan of the place from where he recovered lathi and proved by him as Exhibit Ka. 19. During investigation no other incriminating articles were found from the house of other accused persons. The recovered articles were sent for chemical examination. The report of Serologist Exhibit Ka. 24 showed human blood on lathi but the blood group could not be ascertained. 6. The accused Ram Saran and co-accused Radhey were arrested from Madnapura on 4.3.1981. After collecting clinching material against the accused persons the Investigating Officer found that prima facie offence is made out against them and as such submitted the charge sheet on 17.3.1981. All the accused appellants had appeared before Court of Sessions when the case was committed to the Court of Sessions by order dated 1.4.1981. The accused/ appellants pleaded not guilty and abjured from the charges and claimed to be tried. The accused appellants Ram Saran, Puttu and Ram Bharosey were charged under Section 148 I.P.C., under Section 302/149 and 201/149 I.P.C. while Rishi Pal and Ved Pal were charged under Section 147 I.P.C. and Sections 302/149 and 201/149 I.P.C. 7. P.W. 7 Dr. The accused/ appellants pleaded not guilty and abjured from the charges and claimed to be tried. The accused appellants Ram Saran, Puttu and Ram Bharosey were charged under Section 148 I.P.C., under Section 302/149 and 201/149 I.P.C. while Rishi Pal and Ved Pal were charged under Section 147 I.P.C. and Sections 302/149 and 201/149 I.P.C. 7. P.W. 7 Dr. Satya Pal who was posted as Medical Officer at Shahjahanpur conducted the autopsy of Ram Swaroop at 4 P.M., on 4.3.1981 and as many as nine incised wound, two gun shot wound and one contusion were found on the person of the deceased. According to the Doctor death of Ram Swaroop was caused due to shock and haemorrhage as a result of ante mortem injuries, which were sufficient to cause his death. 46 pallets were recovered from his body, which were sealed and sent to Superintendent of Police, Shahjahanpur alongwith the post mortem report, which was proved by him as Exhibit Ka. 22. 8. Similarly the post mortem of Ratan was conducted by Dr. Satyapal at 4.45 P.M. on the same day and post mortem report was prepared by Dr. Satyapal P.W. 7 who found six incised wound, two contusion and one abrasion on the body of the deceased Ram Ratan and according to his opinion the injuries were caused by kanta and lathis and had opined that the death was due to coma as a result of injuries, which were sufficient in the ordinary course of nature to cause death. He had also opined that death could have occurred at about 6 P.M. or 6.30 P.M. on 3.3.1981. 9. To bring home the guilt of the accused persons the prosecution has examined eight witnesses of fact they are, namely, Chhotey Lal who is the complainant and cousin of the deceased Ram Swaroop examined as P.W. 1, Mishri Lal and Nanku Lal whose names have been mentioned in the first information report and were the eye witnesses of the incident were examined as P. W. 2 and P.W. 3 respectively. Among the formal witnesses the prosecution has examined Sughar Singh Head Constable as P. W. 4 who proved the chick first information report and the general diary and its entry, Vijendra Pal Singh was examined as P. W. 5 who carried the dead bodies of the two deceased persons. Among the formal witnesses the prosecution has examined Sughar Singh Head Constable as P. W. 4 who proved the chick first information report and the general diary and its entry, Vijendra Pal Singh was examined as P. W. 5 who carried the dead bodies of the two deceased persons. P.W. 6 Raj Bahadur Singh was examined who had conducted the inquest on the dead body of the deceased Ram Swaroop and Ratan and prepared inquest report and other police papers and thereafter submitted the charge sheet against all the accused appellants after collecting clinching material. Dr. Satya Pal who had conducted the post mortem of the deceased Ram Swaroop and Ratan was examined as P. W. 7. R. L. Dwivedi who had recovered and informed about the recovery of dead body of Ram Swaroop from the Arhar field of Nanhey Tiwari was examined as P. W. 8. The defense had also examined Constable Prem Lal in order to prove the first information report lodged by the accused Puttu (since deceased) against Ram Swaroop on 24.3.1976 as Case Crime No. 153 of 1976, under Section 325 I.P.C. 10. The accused appellants were examined under Section 313 Cr.P.C. They pleaded for their false implication due to previous animosity. They had denied their participation in the alleged occurrence and the commission of murder of Ratan and Ram Swaroop by them though factum of their death has not been denied. The accused Ram Saran since deceased had denied any relationship with co-accused Radhey and Ram Bharosey (the sole surviving appellant). However, Ram Saran had admitted his relationship with Rishi Pal, Ved Pal aand Puttu who were his real brother who were involved in the commission of the offence and were convicted by the learned trial Court. The other accused persons have also reiterated the version as stated by Ram Saran in his statement under Section 313 Cr.P.C. 11. On the basis of the appraisal of the entire evidence on record the learned trial judge recorded the conviction and imposed the sentence as has been stated herein before. Hence the present appeal. 12. We have heard the learned counsel for the appellants S/Sri Rahul Mishra and Raghuvansh Mishra and the learned A.G.A. Sri Rajeev Gupta on behalf of the State and have perused the record. 13. Hence the present appeal. 12. We have heard the learned counsel for the appellants S/Sri Rahul Mishra and Raghuvansh Mishra and the learned A.G.A. Sri Rajeev Gupta on behalf of the State and have perused the record. 13. The learned counsel for the appellant has argued that there is no dispute with regard to the death of Ratan and Ram Swaroop but all the accused appellants have been falsely implicated in the present case due to grudge and ill will nurturing against them by the complainant. The criminal law was set in motion on the basis of an oral first information report lodged by P. W. 1 Chhotey Lal who had put his thumb impression on the first information report. The first information report was lodged at 10 P.M. on 2.3.1981 in respect of the incident, which took place at about sunset. From the bare perusal of the first information report which has been lodged orally by an illiterate person giving minutest detail of the incident, creates doubt about its veracity. It has been lodged after great consultation with the help of police, which is anti time as no case was registered on the said date after this case. The incident is of 2.3.1981 and on the next day inquest on the dead bodies of the deceased Ram Swaroop and Ratan were conducted and thereafter their dead bodies were sent for post mortem, which were received on 4.3.1981 at 2.30 P. M., which shows that the police papers were not handed over to the P. W. 5 who carried the dead bodies before the Doctor and only on receiving the necessary papers the post mortem examination was conducted after two days of the incident. The first information report is anti timed also on account of the fact that the general diary was signed by Circle Officer on 7.3.1981. There is also overwriting on dates and counter signature of Circle Officer on Parcha dated 6.3.1981 also shows that the first information report was not in existence. The Investigating Officer who conducted the inquest of Ratan does not also indicate as when the inquest started and when the Investigating Officer reached at the spot and started conducting the inquest. There is overwriting on the inquest report while conducting inquest on the dead body of deceased Ram Swaroop. The Investigating Officer who conducted the inquest of Ratan does not also indicate as when the inquest started and when the Investigating Officer reached at the spot and started conducting the inquest. There is overwriting on the inquest report while conducting inquest on the dead body of deceased Ram Swaroop. There is discrepancy with regard to the time of sealing the dead body of Ram Swaroop. At one place it is written 11.45 A.M. while in other police papers it is shown 10.15 A.M. The inquest report also do not mention as to what police papers were accompanied with the dead body, which shows that the first information report was not in existence at the time of conducting the inquest. The first information report was lodged in consultation with the police. This fact is further strengthened from the statement of prosecution witness Chhotey Lal P.W. 1 who had clearly stated that after lodging the first information report when he returned back he found one head constable and two constables of Chowki Midnapur were present at the scene of the incident, thus before lodging the first information report the police had already arrived there. The first informant who is an illiterate person and has put his thumb impression on the first information report, has given vivid description of the manner of incident, which shows that it was prepared with the help of the police, which is not expected from an illiterate person orally and was not transcribed by any person who were present at the time of incident. 14. It is further contended by the learned counsel for the appellant that the manner of incident as mentioned in the first information report do not support the medical evidence. There is great inconsistency in the statement of the eye witnesses who were alleged to have seen the occurrence. It is mentioned in the first information report that Ram Swaroop was assaulted with lathi by Ved Pal and Rishi Pal (since deceased) and with Kanta by the accused Ram Bharosey the surviving appellant, and when Ram Swaroop fell down three fire were made on his body by rest of the accused persons. It is mentioned in the first information report that Ram Swaroop was assaulted with lathi by Ved Pal and Rishi Pal (since deceased) and with Kanta by the accused Ram Bharosey the surviving appellant, and when Ram Swaroop fell down three fire were made on his body by rest of the accused persons. It is stated that three shots were fired from a close range is consistent with the statement of P. W. 1, 2 and 3 but while conducting the post mortem the Doctor had found only two firearm injury I.e. injury No. 6 and 8 with blackening, charring etc. The time was said to be sunset recognition was not possible nor it could be said whose fire actually caused the death of Ram Swaroop, thus it is clear contradiction with the medical evidence and the ocular testimony of eye witnesses. The deceased had suffered the gun shot injury and injury No. 6 cannot be said to be made from a gun, which could have been caused by a firearm like rifle only rifle would have caused fracture on right lower jaw and scull and would have made an exist wound on the left ear. Such injury could not have been caused by a weapon like gun discharging bullet. 15. It is consistent case of the prosecution that Rishi Pal and Ved Pal both were armed with lathi and had attacked upon Ram Swaroop with their respective lathis but there is only one contusion was found by the Doctor while conducting the post mortem examination of Ram Swaroop. This also create doubt about the presence of the witnesses who had seen the actual incident. The incised wound found on the dead body of the deceased Ram Swaroop cannot be said to be caused by one weapon i.e. Kanta, which was wielded by Ram Bharosey. As looking into the dimension of incised wound there are chances of more than one weapon, which could have caused incised wound on the dead body of the deceased and in this regard the Doctor P. W. 7 who had conducted the post mortem has also not denied the possibility of using of any other weapon like axe. As looking into the dimension of incised wound there are chances of more than one weapon, which could have caused incised wound on the dead body of the deceased and in this regard the Doctor P. W. 7 who had conducted the post mortem has also not denied the possibility of using of any other weapon like axe. It is also mentioned in the first information report that the dead body of the deceased Ram Swaroop was dragged by the accused persons towards jungle but no dragging mark was found upon the dead body by the Doctor is in contradiction with the ocular testimony of the eye witnesses. All the prosecution witnesses have consistently stated about that when Ram Swaroop was encircled by the accused persons and was given blows of lathi and Kanta and when he fell down fire was also made upon him by the accused persons who were having firearm weapon. His brother Ratan came forward to save his brother Ram Swaroop who had also been beaten by them and fire had made but no firearm injury was found on the dead body of the deceased Ratan by the Doctor Satyapal (P.W. 7), thus there is great inconsistency in the statement of the witnesses with regard to the manner of assault, which clearly goes to show that no one has seen the actual incident and the deceased persons were done to death by some other unknown persons taking advantage of darkness and the accused/appellant has been implicated with ulterior motive. It is also highly improbable with regard to the presence of all the witnesses but none of them had sustained any injury when all the accused persons were armed with lethal weapons. In fact the witnesses had no chance to see the actual occurrence, which is clearly discernible from the site plan prepared by the Investigating Officer. Neither in the first information report nor in the statement or in the map the presence has been shown of which a description has been made for the first time before the Court. 16. P.W. 1 has suppressed the genesis of incident and has given false testimony while he was put to lengthy cross examination. In fact he is an interested witness who was in inimical terms with the deceased, which has been admitted by him that he was having litigation with the deceased. 16. P.W. 1 has suppressed the genesis of incident and has given false testimony while he was put to lengthy cross examination. In fact he is an interested witness who was in inimical terms with the deceased, which has been admitted by him that he was having litigation with the deceased. He was also involved in a criminal case lodged by Puttu against the deceased Ram Swaroop under Section 325 I.P.C., which has been proved by the defense witness D.W. 1 Prem Pal. When the first informant who himself was in inimical terms with the deceased, has lodged the first information report against the appellants shows the mala fide intention and as such the testimony of P. W. 1 cannot be said to be trustworthy to place any credence. The presence of all the witnesses is highly doubtful as P.W. 3 is a chance witness who is a convicted person and was residing at Natkura, which was 60 km. away from the place of incident and as such his presence at the time of incident has been made for the purposes of the present case. P. W. 2 has also admitted in his statement with regard to the inimical terms with the appellant. He had borrowed some money from Ram Saran accused and when he could not return money Ram Saran became annoyed and he was turned down from the place near Chakki of Ram Swaroop and was residing north west of the pond as shown in the site plan, thus it has been argued by the learned counsel for the appellant that P. W. 2 was also having inimical terms with Ram Saran who was actually resident of village Hardhaniya and was residing in village Chandokha since the last few years. 17. It is further contended by the learned counsel for the appellant that the presence of P. W. 3 Nanku Lal is highly doubtful as he is a chance witness who was a resident of Karanpur Padari whose presence at the time of occurrence and had seen the incident 60 steps is highly improbable. There is inconsistency in the statement of P.W. 1 and P. W. 2 with the statement of P.W. 3 as the latter has specifically stated when he went near to Ratan he found him alive while two witnesses have stated that Ratan was in a dead condition. There is inconsistency in the statement of P.W. 1 and P. W. 2 with the statement of P.W. 3 as the latter has specifically stated when he went near to Ratan he found him alive while two witnesses have stated that Ratan was in a dead condition. There is great inconsistency in his statement, which is self contradictory with the statement recorded under Section 161 Cr.P.C. with regard to his presence at the time and date of the incident. 18. The conduct of the Investigating Officer while investigating the case assumes great importance connecting the accused/appellant with the crime. Various recoveries were made by the Investigating Officer, which had not been signed by any of the witnesses. The Investigating Officer did not recover any blood stained clothes of any of the deceased except the lathi from the house of co-accused Rishi Pal in the presence of his wife. The investigation has been done in perfunctory manner as nothing has been shown in the site plan to show the position of the witnesses from where they had seen the incident, which creates serious doubt about the manner of investigation. Empty cartridges were recovered but the same was not produced in Court. Even no trail of blood was found by the Investigating Officer when it is the specific case of the prosecution that after committing murder of Ram Swaroop his dead body was taken away by the accused persons to one and half kilometers away from the place of incident in the forest. No other witness came forward to see the occurrence where the two persons have been done to death, when there were more than 50 houses in the vicinity. The Investigating Officer had also not recorded any statement of an independent witness of the locality. The wife of the deceased Prema Devi who had reached at the spot when her husband was done to death and was being taken away by the accused persons, could be the only eye witness of the case but was withheld by the prosecution. By not examining her as an eye witness also creates serious doubt about the involvement of all the accused /appellants in the present case. By not examining her as an eye witness also creates serious doubt about the involvement of all the accused /appellants in the present case. She would be the best person to name all the appellants in the commission of murder of her husband, which shows that there was no enmity with the appellant with the deceased Ram Swaroop and the appellant had no motive to commit the crime as alleged by the prosecution. P. W. 1 Chhotey Lal had tried to prove the motive for the incident and had showed two motive in the first information report by contending that Ram Saran appellant No. 1 who is Baniya by caste had a huge Karkhana at village Chandokha in which he had Chakki, Thresher, Oil Speller etc. The deceased Ram Swaroop also installed a Chakki and some other machines in village Chandokha prior to the occurrence and this act of establishing Karkhana by Ram Swaroop has resulted great effect on the private business of Ram Saran and his brothers Puttu, Ved Pal and Rishi Pal who are co-accused in the present case on account of which they were bearing grudge against the deceased. Another motive mentioned in the first information report for the commission of the present incident a recovery of rifle by the police from the possession of accused Ram Bharosey and the appellant suspected Ram Swaroop deceased who was instrumental for the recovery of the rifle, but the aforesaid two facts have no legs to stand as Ram Swaroop had no Karkhana in the said village and for the alleged recovery of rifle, Ram Saran had never threatened Ram Swaroop or his family members and as such there was no occasion to bear any grudge or ill will. The appellants had not at all been involved in any such incident as alleged in the first information report and on account of collusion with the local police the appellants have been implicated by the complainant Chhotey Lal. Ram Swaroop and Ratan who were brothers and were history sheeter as many cases were pending against them as demonstrated by the statement of P. W. 1, therefore, it was a planned murder committed by some unknown persons and the appellants have been made escape goat. Ram Swaroop and Ratan who were brothers and were history sheeter as many cases were pending against them as demonstrated by the statement of P. W. 1, therefore, it was a planned murder committed by some unknown persons and the appellants have been made escape goat. On the basis of the mis-appreciation of evidence on record and in the absence of prosecution proving the case beyond all reasonable doubt the trial judge has erroneously convicted the appellants, hence the judgment impugned deserves to be set aside. 19. It is further contended by the learned counsel for the appellant that all other appellants have died during the pendency of the appeals who were related to each. The co-accused Ram Bharosey and surviving appellant who has also been convicted and sentenced alongwith other accused persons with the aid of Sections 148, 149 I.P.C., Section 302 I.P.C. and Section 201/149 deserves to be set aside as on the same set of evidence co-accused Radhey has been acquitted by the trial Court. 20. Per contra learned A.G.A. has refuted the submissions of the learned counsel for the surviving appellant Ram Bharosey and supported the findings recorded by the trial Court in convicting all the accused/appellants except co-accused Radhey. There is direct evidence in the shape of eye witness account about the manner of assault took place on 2.3.1981 when the deceased Ram Swaroop was returning to his house from his field. He was unarmed and was attacked and brutally done to death by all the accused persons who were armed with lethal weapons. 21. The oral first information report by Chhotey Lal P. W. 1 cannot be lodged without seeing the incident. The accused/appellants were recognized in the light of the setting sun when Ram Swaroop was returning to his house and reached near the pond (Talab) Ram Saran, Rishi Pal, Ved Pal and Puttu who were armed with gun, Kanta and lathi and co-accused Radhey armed with lathi who was coming behind Ram Swaroop had attacked upon him with their respective weapons and when Ratan came to save the life of his brother he too was attacked brutally and both were done to death in barbarous manner. Not only this in order to create terror in the mind of the complainant and other witnesses Ram Swaroop was carried away by them, whose dead body was found on the next day in the field of one Nanhey Tiwari, which was concealed with leaves of Arhar plant. The Investigating Officer reached at the spot soon after the lodging of the first information report at about 11.15 P. M. and found the dead body of Ratan lying on the spot and it is no body’s case that the deceased Ratan was done to death some where else and his dead body was brought to be kept at the spot where his dead body was found, therefore, the narration of the incident as mentioned in the first information report has consistently been proved by the eye witnesses as well as the site plan prepared by the Investigating Officer coupled with the testimony of the Doctor Satyapal P. W. 7 who conducted post mortem of the two deceased. It is also significant to mention that the wife of the deceased who had seen the occurrence was examined under Section 161 Cr.P.C. who had deposed categorically about the manner of incident as mentioned by the first informant in the first information report, there is no reason for her to implicate the appellants leaving behind the actual culprits. The prosecution case cannot be disbelieved merely because she was not examined by the prosecution before the trial Court. It is for the Court to act upon the testimony of witnesses and if there was any doubt about the testimony the Court could have insisted for corroboration for which there would not be any legal impediment. The Court can and may act on the testimony of single witness but in the present case the testimony of P. W.1 is fully supported by the evidence of two more eye witnesses, namely, Mishri Lal and Nanhku Lal who were examined as P.W. 2 and P. W. 3 who had also seen the ghastly incident. The trial Judge has rightly ruled out the possibility of false implication of the accused/appellants. 22. Learned A.G.A. has further contended that where the first information report is consistent with the deposition about the manner of assault motive of false implication would pale into insignificance. The appellants have not at all disputed with regard to the death/murder of Ratan and his brother Ram Swaroop. 22. Learned A.G.A. has further contended that where the first information report is consistent with the deposition about the manner of assault motive of false implication would pale into insignificance. The appellants have not at all disputed with regard to the death/murder of Ratan and his brother Ram Swaroop. The learned A.G.A. has relied upon the decision of Guiram Mondal v. State of West Bengal, in Criminal Appeal No. 1268 of 2007 decided on 26.4.2013 where the Apex Court has observed that if the first information report was placed before the Magistrate three days after registration of the first information report it cannot be said that the first information report was anti timed, anti dated or fabricated and further held that merely because the witness is a relative of the deceased is not a reason for discarding his evidence and held that many a time strangers will not come forward to depose as witness if they have witnessed the crime. Further possibility of influencing such witnesses is also uncommon. Evidence of relatives can be acted upon if the Court finds that the evidence of such a witness is reliable and trustworthy. This observation has come while giving reference to several decisions of the Apex Court viz. Seeman @ Veeranam v. State by Inspector of Police, (2005) 11 SCC 142 ; Alamgir v. State (NCT, Delhi), (2003) 1 SCC 21 , Dalbir Kaur and others v. State of Punjab, (1976) 4 SCC 158 ; State of U.P. v. Jodha Singh and others, (1989) 3 SCC 465 ; Labh Singh and others v. State of Punjab, (1976) 1 SCC 181 ; Visveswaram v. State represented by SDM, (2003) 6 SCC 73 . 23. In the present case also even for the sake of argument if the first information report was forwarded to the Magistrate with delay, if any, it cannot be said that the first information report was anti timed, anti dated or fabricated. In the case of State of Jammu and Kashmir v. S. Mohan Singh and others, 2006 (9) SCC 272 it is held that the mere delay in sending the first information report to a Magistrate cannot be a ground to throw out the prosecution case if evidence adduced is otherwise found credible and trustworthy. In the case of State of Jammu and Kashmir v. S. Mohan Singh and others, 2006 (9) SCC 272 it is held that the mere delay in sending the first information report to a Magistrate cannot be a ground to throw out the prosecution case if evidence adduced is otherwise found credible and trustworthy. In the cross examination of the eye witnesses there is no serious contradiction, omission, infirmity, defect or lacuna, which can make their evidence unbelievable and to make them untrustworthy witnesses. 24. The Investigating Officer had also taken into possession the blood stained and plain earth from the place of murder where the dead bodies of Ram Swaroop and Ratan were found, which were sent for chemical examiner. The blood stained lathi, which was recovered from the house of Rishi Pal was also sent for chemical examination. The report of the chemical examiner showed that the articles sent for chemical examination were stained with human blood, which has been admitted without formal proof. Dr. Satya Pal who was examined as P. w. 7 had conducted the post mortem of the dead bodies of the two deceased and found nine incised wound two gun shot injuries and one contusion on the dead body of Ram Swaroop while further found five incised wound and several mark and contusion and abrasions and one abrasion on the dead body of Ratan and had specifically stated that the incised wounds were the result of using sharp aged weapon like Kanta and the contusions were the result of hard weapon like lathi and the firearm injuries was the result of use of gun. The duration of death of victim was also opined by 36 hours, which fully confirms about the time of occurrence and the manner of assault. Minor variation with respect to the manner of assault bound to occur due to lapse of time and memory. Merely because no mark of dragging was found it cannot make the presence of the eye witnesses doubtful. The Doctor had also clearly stated that no mark of abrasion was found on the dead body of Ram Swaroop. The Investigating Officer too was not cross examined whether any mark of dragging was found from the place of occurrence upto the place where the dead body of Ram Swaroop was found. 25. The accused persons had absconded from the village after the occurrence. The Investigating Officer too was not cross examined whether any mark of dragging was found from the place of occurrence upto the place where the dead body of Ram Swaroop was found. 25. The accused persons had absconded from the village after the occurrence. Ram Saran was arrested from Madnapur on 4.3.1981 as it has come in the evidence on 4.3.1981 other than co-accused Radhey had surrendered in the Court. It is also significant to point out that material exhibits were never challenged and only suggestion put by the defence, therefore, if the exhibits are not challenged by the defence it amount to be proved. Much stress has been laid by the counsel for the appellants that there was delay in reaching the dead body to the mortuary for conducting post mortem examination. In this regard no questions were put regarding sending and receiving the dead body. No attention was drawn towards the delay. The two dead bodies were handed over to P. W. 5 on 3.3.1981. Both the dead bodies were taken on horse cart from Chandokha to Shahjahanpur after receiving the police papers and reached to the mortuary on 4.3.1981 and the post mortem was conducted by the Doctor Satya Pal P.W. 7 who had categorically stated that he had conducted the post mortem at about 4 P.M. on the dead body of Ram Swaroop and about 4.45 P.M. on the dead body of Ratan. The Doctor had specifically stated that both the dead bodies were found in sealed cover and as such there was no occasion for any tampering with the dead bodies. The Doctor has not stated that he had not received the relevant papers at the time of conducting the post mortem on the dead body of the deceased persons. 26. From the statement of the Investigating Officer it is also clearly discernible that the local police had no enmity with the appellants to falsely implicate them in the present case. Merely because Raj Bahadur Singh was suspended for five years on account of his involvement in robbery, therefore, the testimony of such person cannot be said to be unreliable. There was no grudge of this witness against the appellants to implicate them in the present case. Merely because Raj Bahadur Singh was suspended for five years on account of his involvement in robbery, therefore, the testimony of such person cannot be said to be unreliable. There was no grudge of this witness against the appellants to implicate them in the present case. The learned trial Judge has analyzed the entire evidence on record and had rightly reached to the conclusion that the appellant alone are guilty of offence by hatching conspiracy alongwith co-accused Radhey for committing murder of Ram Swaroop and Ratan, though the trial Court has acquitted co-accused Radhey. The surviving appellant Ram Bharosey who was armed with Kanta according to the prosecution case had assaulted both the deceased whereby nine incised wound found on the dead body of Ram Swaroop and six incised wound on the dead body of Ratan, his conviction and sentence awarded by the trial Court deserves to be up held. The participation of other appellants, namely, Ram Saran, Puttu, Ved Pal and Rishi Pal they have already died during the pendency of appeal and the appeal stood abated against them but under the circumstance of the case Ram Bharosey deserves no leniency and as such the appeal is liable to be dismissed. 27. Having considered the rival submissions of the learned counsel for the parties, this Court is of the opinion that the appellants were actively involved in the commission of murder of Ram Swaroop and Ratan using lethal weapons on account of apprehension that if Ram Swaroop would install a factory in the close vicinity of the factory of the appellants it would diminish their business and on this count the appellants Ram Saran and Puttu having gun, Ram Bharosey the surviving appellant having Kanta, Ved Pal and Rishi Pal and (co-accused Radhey being acquitted) having lathi stopped Ram Swaroop with the intention to kill him and assaulted him with their respective weapons and when Ratan came forward to save his brother he too was attacked by them who fell down after receiving fatal injuries and died on the spot. The shriek and shrill of the two victims drew the attention of the complainant and other witnesses who were known to the appellants they had seen that the dead body of Ram Swaroop was taken away by accused/appellants whose dead body was found on the next day in the Arhar field of one Nanhey Tiwari covered with leaves by P. W. 8 Ram Lakhan Dwivedi. All the appellants were named in the first information report. There is consistent testimony showing the complicity of all the appellants and they could not have been exculpated by the trial Judge at the dint of passing enmity with other persons. The presence of the eye witnesses were natural and their evidence was found reliable. Their evidence was corroborated by the medical evidence. The appellants could have been acquitted by the trial Judge if the medical evidence would not have supported the ocular testimony. It would not be proper to over shadow the entire prosecution case for want of examination of the wife of deceased Ram Swaroop when the case is fully corroborated by the testimony of other eye witnesses and the medical evidence. If there would have any inconsistency or doubt about the testimony of the eye witnesses the Court could have insisted for corroboration. It is for the Court to act upon the testimony of witnesses. It is not the quantity but the quality that is material. The time honoured principle is that 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 ring of truth is cogent, credible and trustworthy. Minor inconsistency with regard to the manner of investigation is not a ground to discard the entire prosecution case. The Investigating Officer has found the blood on the spot as well as near the place where the dead body of the deceased Ram Swaroop was recovered further strengthen the prosecution case. On analysis of the factual scenario the prosecution has successfully established that there was sufficient motive for the appellants to commit the crime. 28. The Investigating Officer has found the blood on the spot as well as near the place where the dead body of the deceased Ram Swaroop was recovered further strengthen the prosecution case. On analysis of the factual scenario the prosecution has successfully established that there was sufficient motive for the appellants to commit the crime. 28. Bald denial by the accused appellants in their statement under Section 313 Cr.P.C. when specific and separate questions were put with regard to the incriminating evidence and circumstances leads to irresistible conclusion that it has formed a complete chain establishing their guilt resulting into conviction of the appellants by the trial Court. 29. We have no doubt in our mind that the prosecution has not fully established the charges leveled against each of the accused/appellant. Since Ram Bharosey accused is now the surviving appellant who have been attributed specific role of causing injuries on vital parts with Kanta and the same is fully supported by the post mortem report of Ram Swaroop and Ratan, therefore, his guilt is proved to the hilt by the prosecution with the aid of evidence of eye witnesses. The learned trial Court has sifted the entire evidence on record carefully and warily being reasoned and judicious, the inevitable conclusion is that the appeal preferred by the surviving appellant Ram Bharosey is without merit deserves dismissal. 30. Accordingly the appeal is dismissed. The judgment and order of the trial Court dated 22.12.1981 convicting the appellant Ram Bharosey under Sections 148, 302/149 and under Section 201/149 I.P.C. with maximum sentence of life imprisonment in S.T. No. 204 of 1981 is hereby maintained and up held, hence we direct that the appellant Ram Bharosey be taken into custody forthwith to serve out the sentence awarded to him. 31. The office shall remit the record to the trial Court for further necessary compliance. 32. Judgment be certified and placed on the record.